H-1B visa

The H-1B is a foreign worker visa in the United States that allows U.S. employers to hire foreign workers in so-called specialty occupations. The regulation and implementation of the visa program is carried out by the United States Citizenship and Immigration Services (USCIS) within the United States Department of Homeland Security (DHS).

Although U.S. law does not specify what it considers "specialty occupations," they are defined as a category of specialized knowledge and eligible applicants must have at least a bachelor's degree or higher qualification, or the equivalent work experience.^[2][3]

The visa allows an initial three-year stay in the U.S., which may be extended to a maximum of six years. After this period, the visa holder must either leave the U.S. or reapply. The number of H-1B visas issued each fiscal year is capped at 65,000, with an additional 20,000 visas available for individuals who have earned a master's degree or higher from a U.S. institution. Sponsorship by an employer is required for applicants.^[2]

In 2019, the USCIS estimated there were 583,420 foreign nationals on H-1B visas in the United States.^[4] Between 1991 and 2022, the number of H-1B visas issued quadrupled.^[5] 265,777 H-1B visas were approved in 2022, the second-largest category of visa in terms of the number of foreign workers after the 310,676 H-2A visas issued to temporary, seasonal, agriculture workers.^[6]

The H-1B program has been criticized for potentially subsidizing businesses, creating conditions likened to modern indentured servitude, institutionalizing discrimination against older workers, and suppressing wages within the technology sector. Economists and academics remain divided on the program's overall effect, including its effects on innovation, U.S. workers, and the broader economy.^{[7][8][9][10][11][12][excessive citations]}

The H-1B visa is a non-immigrant visa in the United States that allows employers to hire foreign workers in specialty occupations, has an annual cap on the number of issued visas, and requires employers to submit paperwork that ensures compliance with various provisions of the law authorizing the visa.

H-1B visas, as defined by United States Code, are those jobs that require a "theoretical and practical application of a body of highly specialized knowledge" and a bachelor's degree or higher or the equivalent experience.^[13] In order to determine which jobs qualify under the law, the USCIS works with the Department of Labor and its Standard Occupational Classification database to determine a list of specific occupations.^[14]

To maintain H-1B visa status, visa holders must maintain employment with their sponsoring employer. If employment ends, the individual must either leave the U.S., seek a change of status, or obtain a new H-1B sponsorship.^[15] As of 2017, USCIS implemented a grace period of up to 60 days following employment termination, during which the individual may remain in the United States to seek new employment or file for a change of status.^[16]

The duration of stay for an H-1B visa holder is typically six years. In 2000, some exemptions were added to increase the length of stay for some visa holders:

• Permanent Residency Applications: If the visa holder has filed a Form I-140 or a Permanent Labor Certification before the fifth year of having an H-1B visa, they may extend their H-1B status in one-year increments until the government decides whether to grant permanent residency status.^[17]
• Priority Date Delays: If an approved I-140 petition exists but the applicant cannot proceed with the green card process due to a backlog, they may be eligible for a three-year extension.^[18]
• Department of Defense Projects: H-1B holders working on specific Department of Defense projects may extend their visa up to ten years.^[19]

For certain countries, the three-year extension period has been set to one-year extensions for various reasons. For example, during Melania Trump's time as a H-1B visa holder, she was limited to one-year increments, which was the maximum time allowed for H-1B visa for citizens of Slovenia. Melania Trump became a U.S. citizen in 2006.^[20]

After six years, H-1B holders who have not obtained permanent residency must spend one year outside the U.S. before reapplying for another H-1B visa, unless they qualify for an extension under the exceptions mentioned above.^[21] Visa holders may change to a job in a specialized occupation other than the one they were approved for in their initial application providing their new job is considered a specialized occupation and that their employment is officially sponsored by their new employer.^[22]

The USCIS uses an electronic registration system and lottery process to manage applications. American employers H-1B workers must create an account on the USCIS online portal. This account enables them to submit registrations for prospective beneficiaries during the designated registration period.^[23]

USCIS announces dates for the registration period each fiscal year, typically in March. As of April 2024, the registration fee is $215 per beneficiary. This fee is non-refundable and must be paid at the time of registration. Employers provide basic information about their company and each prospective beneficiary. USCIS states the streamlined process reduces the administrative burden compared to submitting full petitions initially.^[23]

The annual H-1B season officially starts in March of each year, when petitioners are allowed to register electronically for their applicant. If more registrations are submitted there will be a random selection, also called an H-1B lottery.^[24] After the registration period closes, USCIS conducts the lottery and notifies selected registrants. Employers with selected registrations have a limited period, typically 90 days, to submit completed H-1B petitions (Form I-129) for their beneficiaries. The earliest date for filing these petitions is usually April 1.^[23]

During the 2024 fiscal-year lottery, there were 758,994 eligible electronic registrations and 110,791 people selected for an H-1B visa.^[23]

Selected registrants can begin filing their Labor Condition Application with the Department of Labor on April 1.^[25] It allows a six-month window before the employee start date on October 1.^[23]

USCIS implements measures to prevent fraud and abuse in the registration process, including a beneficiary-specific selection process to prevent multiple registrations for the same individual by different employers. These measures aim to ensure a fair selection process.^[23]

In March 2017, a federal judge in Oregon dismissed a lawsuit challenging the H-1B visa lottery system, granting summary judgment in favor of USCIS, applying Chevron deference. The court's ruling acknowledged USCIS's discretion in implementing this system to address the overwhelming number of petitions received each year.^[26][27]

Before an employer can hire a foreign worker under the H-1B visa program, the employer must submit a Labor Condition Application (LCA) to the U.S. Department of Labor for certification. The LCA ensures the employment of H-1B workers will not harm the wages or working conditions of U.S. workers in similar roles.^[28][29][30]

The LCA is designed to protect both U.S. and foreign workers by setting standards for wages and working conditions. Employers are prohibited from using the H-1B program to replace U.S. workers during labor disputes or to exploit foreign workers by offering substandard wages. Employers must keep detailed public records, making LCAs available for inspection by the Labor Department and members of the public upon request. The required forms to fulfill this requirement are Forms ETA-9035 and 9035. The Labor Department has different requirements for workers who are dependent on H-1B visa workers.^[28][30]

Employers hiring H-1B visa workers must:^[30]

• Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;
• Provide working conditions for H-1B, H-1B1, or E-3 workers that will not adversely affect the working conditions of workers similarly employed;
• Not employ an H-1B, H-1B1, or E-3 worker at a location where a strike or lockout in the occupational classification is occurring, and notify ETA of any future strike or lockout; and
• On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B, H-1B1, or E-3 workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B, H-1B1, or E-3 worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.^[30]

According to additional rules for employers who are dependent upon H-1B workers or are willful violators of the H-1B rules:

• The employer will not displace any similarly employed U.S. worker within 90 days before or after the date of filing of any visa petition supported by an LCA;
• The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker, and the employer applicant has no contrary knowledge; and
• The employer, before petitioning for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a "priority worker" (see Section 203(b) (1) (A), (B), or (C) of the INA).^[30]

Additional rules apply to employers who are dependent (15 percent or more of their workforce) or who have violated rules with the Department of Labor in the past.^[30]

H-1B visa holders are taxed based on residency status under the Substantial Presence Test.^[31] Those present in the U.S. for at least 183 weighted days over three years are resident aliens and taxed on worldwide income. Others are nonresident aliens, taxed only on U.S.-sourced income.^[32]

H-1B workers must pay Social Security and Medicare taxes, unless exempt under a Totalization Agreement.^[31] As such, visa holders may be eligible for receiving Social Security benefits upon retirement should the individual have enough credits and not barred by any totalization agreements with their home country.^[33] Employers also pay federal unemployment tax on their wages.^[31]

For tax filing, nonresidents use Form 1040-NR, while residents file Form 1040.^[31] Dual-status taxpayers (those changing residency status during the year) must file specialized returns.^[31]

H-1B holders who qualify for tax treaty benefits must file Form 8833, with additional forms for specific exemptions.^[31] Ensuring compliance with tax classification and reporting prevents penalties.^[31]

H-1B visas are considered "dual intent" because it is a temporary visa which gives visa holders the option to apply for permanent residency.^[34] Employers often support this process by sponsoring green card application for H-1B employees.^[35][36] Typically, visa holders will be working in the U.S. with the visa while they apply for permanent residency^[37][38]

H-1B visa holders can bring immediate family members, such as their spouse and children under 21, to the United States as dependents under the H-4 visa category.^[39]

An H-4 visa holder may remain in the U.S. as long as the H-1B visa holder retains legal status. An H-4 visa holder is allowed to attend school, apply for a driver's license, and open a bank account in the U.S.^[40]

When an H-1B worker travels outside the U.S. (except to Canada or Mexico for 30 days or less),^[41] they must have a valid visa stamp in their passport to re-enter the US.^[42] If their visa stamp has expired but they have an unexpired I-797 petition approval notice, they must visit a U.S. embassy and appear before a Department of State Consular Officer to obtain a new H-1B visa stamp.

Consular officers follow the Foreign Affairs Manual, which states that an approved USCIS petition confirms the basic requirements for H-1B classification have been met.^[43] However, officers do not re-evaluate whether the job qualifies as a specialty occupation or whether the applicant meets all position-related requirements.

While USCIS approval does not guarantee a visa, consular officers can only refuse issuance if they suspect fraud or misrepresentation. They rely on their cultural and local knowledge to assess credibility.^[43] If concerns arise, they may request additional evidence or take more time to decide.^[43] If issues are confirmed, the case is sent back to USCIS for review, where the petition is either reaffirmed or revoked.^[44][45] Consular officers themselves do not have the authority to revoke USCIS-approved petitions.^[43]

In some visa-application cases, H-1B workers can be required to undergo "administrative processing" involving extra background checks. Under current rules, these checks are supposed to take ten or fewer days but in some cases, have lasted years.^[46]

An individual with a valid H-1B visa does not need a visa to enter Costa Rica for tourism for up to 30 days.^[47] The H-1B visa must be stamped in the passport and be valid for at least six months.^[47] The passport must be valid for at least six months after entering Costa Rica.^[47]

The Department of State introduced a limited Domestic Visa Renewal Pilot Program from January 29 to April 1, 2024, to simplify the H-1B visa renewal process. This program allowed select H-1B visa holders who had previously received their visas from specific consulates in Canada or India to renew them within the U.S., avoiding the need for international travel.

Capped at 20,000 participants, the program offered 4,000 filing slots per week over five weeks. It was limited to H-1B renewals for applicants not subject to reciprocity fees or requiring in-person interviews. Those whose previous H-1B visa were marked “Clearance Received," indicating a prior Security Advisory Opinion, were not eligible to participate.^[48]

If an employer lays off an H-1B worker, the employer is required to pay the "reasonable" costs of the laid-off worker's transportation outside the U.S.^[49] If an H-1B worker is laid off or quits, the worker has a grace period of 60 days or until the I-94 expiration date, whichever is shorter, to find a new employer or leave the country.^[50]

There is a 10-day grace period for an H-1B worker to depart the U.S. at the end of their authorized period of stay. This grace period applies only if the worker works until the H-1B expiration date listed on their I-797 approval notice or I-94 card.^[51]

The H-1B visa program is subject to an annual cap of 65,000 visas, with an additional 20,000 visas available for applicants holding advanced degrees from U.S. institutions. Certain employers are exempt from these caps, including:^[25]

• institutions of higher education,
• nonprofit and governmental research organizations,
• cap-exemption employees (those who have already received H-1B visas),
• applications to work in the Northern Mariana Islands and Guam, and
• Chilean and Singaporean nationals.

Prospective H-1B workers seeking employment in the U.S. territories of the Northern Mariana Islands and Guam are exempt from the cap until December 31, 2029. If approved, visa holders may only work in the territory (NMI or Guam) for which they are approved.^[25]

The Chile–United States and Singapore–United States Free Trade Agreements establish separate annual quotas for citizens of Chile (1,400/year) and Singapore (5,400/year). Unused application quotas are added to the general cap for H-1B visas for the following year.^[25]

The E-3 visa is specifically designated for Australian citizens and not subject to the H-1B cap. E-3 visas offer an alternative route for Australian professionals to seek employment in the United States, has an annual cap of 10,500 visas per year, and a different duration and application process.^[25]

On June 27, 1952, Congress passed the Immigration and Nationality Act after overriding a veto by President Harry S. Truman. For the first time, the Immigration and Nationality Act codified United States' immigration, naturalization, and nationality law into permanent statutes, and introduced a system of selective immigration by giving special preference to foreigners having skills that were urgently needed by the U.S.^[52] Several types of visas were established, including a H-1 visa for "an alien having a residence in a foreign country which he has no intention of abandoning who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability."^[53] The term "distinguished merit and ability" was not new to U.S. immigration law; it had previously been used as a qualification for musicians and artists who had wanted to enter the country.^[54][55] The visa was called an H-1 visa because it was enacted by section 101(15)(H)(1) of the Immigration and Nationality Act.^[53]

President George H. W. Bush signed the Immigration Act of 1990 into law by on November 20, 1990. The H-1 visa was split into the H-1A visa for nurses, and the H-1B visa for workers in specialty occupations. The Immigration Act defined a specialty occupation as "an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." To qualify, a visa applicant needed any applicable state license for the particular occupation, and either an educational degree related to the occupation or an equivalent amount of professional experience. For the first time, a quota of 65,000 H-1B visas available each fiscal year was established. Employers were required by law to pay such employees at least the prevailing wage for the position, and to make certain attestations by way of a Labor Condition Application.^[56][57]

President Bill Clinton signed the American Competitiveness and Workforce Improvement Act into law on October 21, 1998. The law required each application for an H-1B to include an additional $500 payment that would be used for retraining U.S. workers to reduce the future need for H-1B visas. The quota of H-1B visas was increased from 65,000 to 115,000 for fiscal years 1999 and 2000 only. For an employer with a large number of employees in H-1B status or one who had committed a willful misrepresentation in the recent past, the employer was required to attest the additional H-1B worker would not displace any U.S. workers.^[58] The act also gave investigative authority to the United States Department of Labor.

On October 17, 2000, President Bill Clinton signed into law the American Competitiveness in the 21st Century Act,^[59] which increased the retraining fee from $500 to $1,000. The quota was increased to 195,000 H-1B visas in fiscal years 2001, 2002, and 2003 only. Nonprofit research institutions sponsoring workers for H-1B visas became exempt from the H-1B visa quotas.^[60]

Under the law, a worker in H-1B status who had already been subject to a visa quota would not be subject to quotas if requesting a transfer to a new employer or if applying for a three-year extension.^[61] An H-1B worker was now allowed to change employers if the worker had an I-485 application pending for six months and an approved I-140, and if the new job was substantially comparable to their current one.^[62]

In the case of an H-1B holder's spouse in H-4 status, the spouse may be eligible to work in the U.S under certain circumstances.^[63] The spouse must have an approved "Immigration Petition for Alien Worker" form or have been given H-1B status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act of 2000.^[63]

Congress ratified the Singapore–United States Free Trade Agreement in 2003, and later that year, the Chile–United States Free Trade Agreement.^{[citation needed]} With these free trade agreements, a new H-1B1 visa that was available solely for people from either Singapore or Chile was established. Unlike H-1B visas that had a limited renewal time, H-1B1 visas could be indefinitely renewed. H-1B1 visas are subject to a separate quota of 6,000 per fiscal year. Unlike H-1B visas, an H-1B1 visa is not a dual-intent visa, and an H-1B1 applicant must convince the visa officer they have no intention of permanently immigrating to the United States.^{[citation needed]}

The H-1B Visa Reform Act of 2004 was a part of the Consolidated Appropriations Act, 2005, which President George W. Bush signed on December 6, 2004. For employers with 26 or more employees, the retraining fee was increased from $1,000 to $1,500, and it was reduced to $750 for all other employers. A new $500 "anti-fraud fee" was to be paid by the employer with the visa application.^[64] The H-1B quota returned to 65,000 per year and the law added 20,000 visas for applicants with J-1 status with either a master's degree or a doctorate degree from a U.S. graduate school. Governmental entities became exempt from H-1B visa quotas. According to the law, H-1B visas that were revoked due to either fraud or willful misrepresentation would be added to the H-1B visa quota for the following fiscal year.^{[citation needed]} The law also allowed one-year extensions for H-1B visa holders who were applying for permanent residency and whose petitions had been pending for a long time. The Department of Labor had more investigative authority, but an employer could defend against misdeeds by using either the Good Faith Compliance Defense or the Recognized Industry Standards Defense.^{[citation needed]}

In 2007, Senators Dick Durbin of Illinois and Charles Grassley of Iowa began introducing "The H-1B and L-1 Visa Fraud & Prevention Act" in 2007. According to Durbin, speaking in 2009: "The H-1B visa program should complement the U.S. workforce, not replace it ... The ... program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs." Compete America, a tech industry lobbying group, opposed the proposed legislation.^[65]

The Consolidated Natural Resources Act of 2008 federalized immigration in the U.S. territory of the Commonwealth of the Northern Mariana Islands, and it stipulated during a transition period, numerical limitations would not apply to otherwise qualified workers in the H visa category in the U.S. territories of Guam and the Northern Mariana Islands.^[66] The exemption does not apply to any employment to be performed outside of those territories.^[67]

The Employ American Workers Act, as part of the American Recovery and Reinvestment Act of 2009, was signed into law by President Barack Obama on February 17, 2009.^[68] Employers who applied to sponsor a new H-1B applicant and who had received funds under either the Troubled Asset Relief Program (TARP) or the Federal Reserve Act Section 13 were required to attest the additional H-1B worker would not displace any U.S. workers, and that the employer had not laid off and would not lay off any U.S. worker in a job equivalent to the H-1B position in the area of intended employment of the H-1B worker in the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.^[69]

In 2017, the U.S. Congress considered more-than doubling the minimum wage for an H-1B holder from the $60,000 (USD) established in 1989 and unchanged since then. The High Skilled Integrity and Fairness Act, which U.S. Rep. Zoe Lofgren of California introduced, would raise H-1B holders' minimum salaries to $130,000.^[70] The Indian press criticized the action for confirming "the worst fears of [Indian] IT companies" following the reforms discussed during the 2016 Presidential election by both major candidates, and for causing a 5% drop in the BSE SENSEX index.^[71] Though, India in general has been welcoming this change and requirement since 2015.^[72] Lofgren's office described it as a measure to "curb outsourcing abuse," citing unfair tech hiring practices by employers including Disney and University of California San Francisco.^[73]

Since 2008, USCIS has updated and issued new rules regarding the H-1B visa.^{[citation needed]}

On April 2, 2008, Homeland Security Secretary Michael Chertoff announced a 17-month extension to Optional Practical Training for STEM students, as part of the H-1B Cap-Gap Regulations.^[74][75] This extension allows foreign STEM students to work in the U.S. for up to 29 months on a student visa, providing additional time to secure H-1B sponsorship.^[76][77]

To qualify for the standard 12-month OPT, a bachelor’s degree in any field is acceptable. However, the 17-month STEM extension requires a degree in an approved STEM major, as listed by USCIS.^[78] The cap-gap extension, introduced alongside this rule, allows STEM OPT workers with pending or approved H-1B petitions to remain in the U.S. while awaiting the start of their H-1B status.^[79][80]

On January 8, 2010, USCIS issued a memorandum clarifying that a valid employer-employee relationship must exist between an H-1B employer and visa-holding employee, although the memo was ultimately not implemented. The memo stated that employers must demonstrate control over when, where, and how the employee performs their work to maintain compliance.^[81]

A valid employer-employee relationship typically includes:

• supervision of the employee, either on-site or remotely.
• control over work assignments, schedules, and tasks.
• provision of tools, equipment, and resources necessary for the job.
• authority to hire, pay, evaluate, and terminate employment.
• employee benefits and use of employer-provided proprietary information.

The memo emphasized that common law principles guide the assessment of these factors.^[82]

Third-party placement firms and staffing agencies generally do not qualify for H-1B sponsorship.^[83][84][85] Senator John Cornyn helped negotiate a halt to the memo’s implementation following concerns from IT outsourcing firms.^[86]

Under this rule, an H-1B worker’s spouse in H-4 status may obtain work authorization if the H-1B holder is either:

1. the principal beneficiary of an approved I-140, or
2. maintaining H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000.

DHS implemented this rule to ease financial burdens on families transitioning from non-immigrant to permanent resident status.^[87] It also helps retain high-skilled workers by reducing incentives for them to leave the U.S., preventing disruptions for their employers and the economy.^[88]

In 2015, USCIS issued final guidance stating if an H-1B worker whose worksite location changes to a different metropolitan area, it is a material change that requires the employer to certify a new Labor Condition Application to the DHS. Temporary worksite changed do not require a new LCA. Examples include a H-1B worker attending a training session, seminar, or conference of short duration, or a temporary moved to a short-term placement of fewer than 30 days. If the amended H-1B petition is disapproved but the original petition remains valid, the H-1B worker retains their H-1B status as long as they return to work at the original worksite.^[89]

On December 5, 2016, USCIS issued a memorandum to provide guidance for periods of admissions for an individual in H-1B status. The memorandum stated time spent as either an H-4 dependent or an L-2 dependent does not reduce the maximum allowable period of stay available to individuals in H-1B status.^[90]

On November 18, 2017, United States Citizenship and Immigration Services released a rule that affects individuals in H-1B status whose employment ends.^[91][92] In these cases, the individual has a grace period of 60 days to leave the United States or change to another legal status that allows them to remain in the United States.^[93]

In 2005, the Violence Against Women and Department of Justice Reauthorization Act allowed work authorization for victims of domestic violence who are in H-4 status.^[94] On February 17, 2017, USCIS instituted a process for these victims to apply for work authorization.^{[citation needed]}

Eligible individuals include current H-1B visa spouses and individuals whose marriage ended because of battery or extreme cruelty perpetrated by the individual's former spouse.^[95] The individual must have entered the U.S. in an H status, must continue to be in H-4 status, and were themselves or their child battered or subjected to extreme cruelty by the H-1B spouse.^[95] The spouse's application must include evidence of the abuse.^[95] Before this policy was implemented, an abused spouse in H-4 status would be required to leave the U.S. on the date the person divorced the abusive spouse.^[95] The divorced spouse may now legally remain in and work in the U.S. after the divorce is finalized or pending.^[95] If approved, the authorization is valid for two years.^[95]

A memorandum from December 22, 2000, stated because most computer-programming positions required a bachelor's degree, computer programming was considered a specialty occupation that qualified for an H-1B visa.^[96][97] On March 31, 2017, USCIS released a memorandum stating computer programming would no longer be automatically considered a specialty occupation, partly because a bachelor's degree was no longer typically required for these positions.^[98] An application for an H-1B visa for a computer programmer must sufficiently describe the duties, and the level of experience and responsibilities of the position to demonstrate how the position is senior, complex, specialized, or unique rather than an entry-level position to qualify for an H-1B visa.^[99][100] In addition, the Department of Justice warned employers not to discriminate against U.S. workers by showing a preference for hiring H-1B workers.^[101]

On April 18, 2017, President Donald Trump signed an executive order directing federal agencies to implement a "Buy American, Hire American" strategy, a key pledge of his campaign.^{[102][103][104]} At a press briefing, the executive order directed federal agencies such as the Department of Labor, the Department of Justice, the DHS, and the Department of State to implement a new system that favored higher-skilled, higher-paid applicants.^{[105][106][107]} The executive order was intended to order federal agencies to review and propose reforms to the H-1B visa system.^[108] Furthermore, these departments will "fill in the details with reports and recommendations about what the administration can legally do."^[109] Trump stated the executive order would "end the theft of American prosperity," which he said had been brought on by low-wage immigrant labor.^[110]

On January 9, 2018, the USCIS said it was not considering any proposal that would force H-1B visa holders to leave the U.S. during the green-card process.^[111] USCIS said an employer could request extensions in one-year increments under section 106(a)–(b) of the American Competitiveness in the 21st Century Act instead.^[112][111]

On June 28, 2018, the USCIS announced when a person's request for a visa extension is rejected, the person will be deported from the country.^[113] The Trump administration said it was not considering any proposal that would force H-1B visa holders to leave the country.^[114]

On April 22, 2020, President Trump signed a presidential proclamation that temporarily suspended the entry of people with non-immigrant visas, including H-1B visas.^[115] On June 22, 2020, President Trump extended the suspension for H-1B visa holders until December 31, 2020.^[116][117] On December 31, 2020, Trump issued a presidential proclamation extending the suspension of entry until March 31, 2021, because they would pose "a risk of displacing and disadvantaging United States workers during the economic recovery following the COVID-19 outbreak."^[118]

On October 28, 2020, a new rule to reform the H-1B lottery by prioritizing workers with the highest wage was approved.^[119]

President Joe Biden allowed the suspension to expire on March 31, 2021, which allowed H-1B visa holders to enter the U.S. beginning on April 1, 2021.^[120]

In 2015, reports surfaced of major companies like Disney and Southern California Edison replacing American workers with H-1B visa holders, sometimes requiring displaced employees to train their replacements as a condition for severance.^[121] The New York Times editorial board criticized the program for exploiting both foreign and domestic workers due to loopholes and weak enforcement.^[122]

Following these revelations, ten U.S. senators urged the Department of Labor to investigate outsourcing practices at Southern California Edison, which had laid off 500 employees.^[123][124] After a ten-month review, the department found no legal violations.^[125][126]

The Senate Judiciary Committee held hearings in 2015 and 2016, led by Senators Chuck Grassley and Jeff Sessions, to examine how the H-1B program affected U.S. workers.^{[127][128][129]} Witnesses, including labor leaders and economists, testified that companies were not required to prioritize American workers, allowing employers to use the program to import cheaper foreign labor instead of filling skills gaps.^[130][131] Senator Grassley characterized the program as favoring employers over U.S. workers rather than serving its intended purpose.^[132]

The H-1B visa program was a contentious issue in the 2016 presidential election. Donald Trump pledged to overhaul the system, arguing that it displaced American IT workers and suppressed wages. His campaign proposed raising the prevailing wage for H-1B workers to encourage hiring U.S. citizens and legal immigrants.^[133]

Hillary Clinton criticized the program for enabling employers to hire cheaper, more compliant foreign workers but viewed H-1B reform as part of broader immigration-policy changes.^[133]

Bernie Sanders opposed guest worker programs and was skeptical of H-1B visas, citing their role in offshoring American jobs. He also rejected open-border policies, emphasizing the need to raise wages and prioritize domestic employment.^[134][135]

In 2019, USCIS launched the H-1B Employer Data Hub, providing public access to information on H-1B visa petitions dating back to fiscal year 2009.^[136] That same year, the USCIS Office of Policy and Strategy released an updated estimate of H-1B visa holders in the U.S. As of September 30, 2019, 583,420 individuals were authorized to work on an H-1B visa.^[137]

USCIS estimated a total of 619,327 approved unique beneficiaries, adjusting for 2,100 visa denials by the State Department and subtracting 32,332 individuals who had obtained lawful permanent residency. An additional 1,475 visa holders had changed to a different non-immigrant status.^[137]

In 2021, USCIS launched its first electronic registration system for the H-1B lottery.^[138]

There is a division between economists and academics about the effects of H-1B visas on innovation, U.S. workers, and overall benefits to the U.S. economy.^{[citation needed]} Studies have shown H-1B visas have welfare-improving effects for Americans, leading to significant wage gains, lower consumer prices, greater innovation, and greater total factor productivity growth.^{[139][140][141][142]} H-1B visas have led to lower prices for consumers, greater output, and improved performance by companies.^{[140][page needed]} A study found H-1B visa holders have been associated with greater innovation and economic performance.^[142] Other studies have shown the opposite. A National Bureau of Economic Research (NBER) paper concluded firms who received H-1B visas do not necessarily innovate or grow more quickly, nor patent more than firms that do not.^[143]

Economists have also found H-1B visas lead to lower wages and employment for competing U.S. workers. A paper by George J. Borjas for the NBER found "a 10 percent immigration-induced increase in the supply of doctorates lowers the wage of competing workers by about 3 to 4 percent."^[144] A 2016 study found H-1B visas kept wages for U.S. computer scientists 2.6% to 5.1% lower, and employment in computer science for U.S. workers 6.1% to 10.8% lower, but resulted in greater production efficiency, lowered the prices of IT products, raised the output of IT products, and caused substantially higher profits for IT firms.^[145]

Critics of the H-1B visa program say it is a government labor-subsidy for corporations. Paul Donnelly, in a 2002 article in Computerworld, cited Milton Friedman as stating the H-1B program acts as a subsidy for corporations.^[146] Others holding this view include Norman Matloff, who testified to the U.S. House Judiciary Committee Subcommittee on Immigration on the H-1B subject.^[147] Matloff describes four types of labor savings for corporations and employers:^[148]

• Type I labor savings is where employers pay H-1Bs less than similarly qualified American workers.
• Type II labor savings are where employers hire younger H-1Bs in lieu of older and more expensive American workers.
• Type III labor savings are where employers force H-1B workers to work longer hours.
• Type IV labor savings are when the oversaturation of H-1B workers suppresses wages in the labor market.

American technology companies are claimed to benefit most from Type II labor savings, where these firms hire a 25-year-old H-1B worker instead of a 50-year-old American programmer.^{[citation needed]}

Academic researchers have found no labor shortage in STEM, undercutting the primary reason for the H-1B visa's existence.^{[citation needed]} In 2022, Howard University public-policy professor Ron Hira found there was no shortage in STEM due to stagnant wages in IT and a 7% decline in real wages for engineers.^[149] In the past, he has called the IT talent shortage "imaginary,"^[150] and a front for companies that want to hire cheaper, foreign, guest workers.

Studies from Rutgers University professor Hal Salzman, and co-authors B. Lindsay Lowell and Daniel Kuehn, have concluded the U.S. has been employing only 30% to 50% of its newly degreed, able and willing STEM workers to work in STEM fields.^[151][152] Salzman points to simultaneous industry layoffs, when industry claims labor shortage. In his Senate Judiciary testimony, he stated between 2006 and 2016, the IT industry, the predominant user of the H-1B visa, laid off on average 97,000 workers per year, more than the number of 74,000 H-1B workers brought for the IT industry.^[153]

A 2012 IEEE announcement of a conference on STEM education funding and job markets stated: "only about half of those with under-graduate STEM degrees actually work in the STEM-related fields after college, and after 10 years, only some 8% still do."^[154] Norman Matloff's University of Michigan Journal of Law Reform paper said there has been no shortage of qualified American citizens to fill American computer-related jobs, and that the data offered as evidence of American corporations needing H-1B visas to address labor shortages was erroneous.^[155] The United States General Accounting Office (GAO) found in a 2000 report controls on the H-1B program lacked effectiveness.^[156] The GAO report's recommendations were subsequently implemented.^{[citation needed]}

High-tech companies often cite a tech-worker shortage when asking Congress to raise the annual cap on H-1B visas, and have succeeded in getting exemptions passed. The American Immigration Lawyers Association (AILA), described the situation as a crisis, and the situation was reported on by Wall Street Journal, BusinessWeek, and Washington Post. Employers applied pressure on Congress.^[157] Microsoft chairman Bill Gates testified in 2007 on behalf of the expanded visa program on Capitol Hill: "warning of dangers to the U.S. economy if employers can't import skilled workers to fill job gaps."^[157] Congress considered a bill to address the claims of a shortfall^[158] but did not revise the program.^[159]

According to a study conducted by John Miano and the Center for Immigration Studies, there is no empirical data to support a claim of a worker shortage.^[160] Citing studies from Duke, Alfred P. Sloan Foundation, Georgetown University and others, critics have also argued in some years, the number of foreign programmers and engineers imported outnumbered the number of jobs created by the industry.^[161] Hire Americans First has posted hundreds of first-hand accounts of H-1B visa harm reports from individuals who were harmed by the program.^[162]

Critics of the H-1B program often complain about wage depression as a result of an increased supply of discounted guest workers. In the 21st century, labor experts have found guest workers are abundantly available in times of wage decline and weak workforce demand.^[151] The Economic Policy Institute found sixty percent of certified H-1B positions were paid below the local median wage. In Washington D.C, companies hiring a level-1 entry-level H-1B software developer received a discount of 36%, or $41,746. For level-II workers, companies received a discount of 18%, or $20,863.^[163]

In 2014, The Department of Homeland Security annual report indicates that H-1B workers in computer Science are paid a mean salary of $75,000 annually, almost 25,000 dollars below the average annual income for software developers ^[164] and studies have found H-1B workers are paid significantly less than U.S. workers.^[165][166] Some critics have said the H-1B program is primarily used as a source of cheap labor.^{[167][168][169][170][171][172][173]}

The Labor Condition Application (LCA) included in the H-1B petition is supposed to ensure H-1B workers are paid the prevailing wage in the labor market or the employer's actual average wage, whichever is higher, but there is evidence some employers get around these provisions and avoid paying the prevailing wage despite stiff penalties for abusers.^[174] The LCA process appears to offer protection to both U.S. and H-1B workers but according to the U.S. General Accounting Office, enforcement limitations and procedural problems render these protections ineffective.^[58] The employer, not the Department of Labor, determines what sources determine the prevailing wage for an offered position, and it may choose from a variety of competing surveys, including its own wage surveys, provided such surveys follow rules and regulations.^{[citation needed]}

The law restricts the Department of Labor's approval process of LCAs to checking for "completeness and obvious inaccuracies."^[175] In FY 2005, only about 800 LCAs of over 300,000 submitted were rejected. Hire American First has posted several hundred first-hand accounts of individuals negatively affected by the program.^[162] According to attorney John Miano, the H-1B prevailing wage requirement is "rife" with loopholes.^[173]

Opponents of the H-1B visa program says wage depression in STEM causes young American college graduates to stop pursuing these fields.^[176]

Critics of the H-1B visa program have said it enables Silicon Valley to discriminate against U.S. citizens and permanent residents. In 2021, Facebook settled a claim with the Department of Justice that it discriminated against U.S. workers in favor of temporary visa holders. The company paid a $4.75-million civil penalty and set aside $9.5 million for eligible victims.^[177]

Critics of the H-1B visa program say the program enables Silicon Valley to discriminate against older workers.^[178]

According to critics, H-1B holders constitute a modern-day form of high-tech indentured servants,^[179] Guest workers on H-1B visas in the IT sector have limited employer mobility compared to U.S. workers.^[180] Although immigration generally requires short- and long-term visitors to disavow any ambition to seek the permanent residency, H-1B visa holders are an important exception because the H-1B is legally acknowledged as a possible step towards a green card under the doctrine of dual intent.^{[citation needed]}

Some workers who come to the U.S. on H-1B visas receive poor, unfair, and illegal treatment by brokers who place them with jobs in the U.S., according to a report published in 2014.^[181][182] The United States Trafficking Victims Protection Reauthorization Act of 2013 was passed to help protect the rights of foreign workers in the U.S., and the U.S. Department of State distributes pamphlets to inform foreign workers of their rights.^[183]

Companies have stolen the wages of H-1B workers. Labor researchers found HCLTech stole $95 million from its H-1B visa workers annually.^[184] Critics say employers exercise outsized control over H-1B workers because the visa ties workers to their employers. These workers are less likely to complain about poor working conditions for fear of visa revocation and deportation.^[148]

In 2017, President Donald Trump expressed concerns about using the H-1B visa as a pathway to permanent residency and proposed restructuring the immigration system, including introducing a points-based system.^{[185][186][187]} In response, some individuals sought alternative routes to permanent residency, such as the EB-5 visa program, which offers a more direct path.^[188] Advocacy groups opposing changes to H-1B policies launched public awareness campaigns, including posters in the San Francisco Bay Area’s Rapid Tansit system.^[189]

Critics of the program criticize American and outsourcing companies for using H-1B visa workers to body shop and offshore work abroad.^[190][191] Researchers have found two thirds of IT jobs are offshorable, and the remaining third remain onshore to be the conduit between American clients and offshore work teams.^[192]

The leading users of H-1B visas are Indian outsourcing firms. In 2021, half of the top-thirty employers of H-1B visa holders were outsourcing firms.^[193] The top-10 H-1B employers in 2014 such as Tata Consultancy, Cognizant, Infosys, Wipro, Accenture, HCL America, and IBM all used the program to ship jobs offshore.^{[191][194][121]} Critics of H-1B use for outsourcing have also noted more H-1B visas are granted to companies headquartered in India than to companies headquartered in the United States.^[195] Although these IT outsourcing companies have a physical presence in the U.S., they hire temporary foreign guest workers.^[176]

Senator Dick Durbin stated in a speech on H-1B visa reform:

The H-1B job visa lasts for three years and can be renewed for three years. What happens to those workers after that? Well, they could stay. It is possible. But these new companies have a much better idea for making money. They send the engineers to America to fill spots—and get money to do it—and then after the three to six years, they bring them back to work for the companies that are competing with American companies. They call it their outsourcing visa. They are sending their talented engineers to learn how Americans do business and then bring them back and compete with those American companies.^[196]

Of all computer systems analysts and programmers on H-1B visas in the U.S., 74 percent were from Asia.^{[citation needed]}

Large migration of Asian IT professionals to the U.S. has been a central component to the emergence of the offshore outsourcing industry.^[197] In FY 2009, due to the worldwide recession, applications for H-1B visas by offshore outsourcing firms were significantly lower than in previous years,^[198] yet 110,367 H-1B visas were issued, and 117,409 were issued in FY2010.^{[citation needed]} Computerworld and The New York Times have reported on the inordinate share of H-1B visas received by firms that specialize in offshore outsourcing,^[199] the subsequent inability of employers to hire foreign professionals with legitimate technical and language skill combinations,^[200] and the replacement of American professionals already performing their job functions and being coerced to train their foreign replacements.^[201][202]

There have been cases where employers used the program to replace their American employees with H-1B employees; in some cases, the laid-off employees were ordered to train their replacements. In 2013 Northeast Utilities laid off 350 tech workers, many of whom trained their replacements who were hired on H-1B visas to do their jobs. In October 2014, Walt Disney World laid off 250 IT workers, some of whose final assigned task for the company was to train their replacements who'd been hired on H-1B visas. Southern California Edison laid off 540 tech workers in 2014, requiring many to train their replacements who'd been hired on H-1B visas. Fossil laid off 100 tech workers and hired 25 on H-1B visas who were then trained by the laid-off employees in what Fossil termed "knowledge sharing."^{[190][203][204][205]} Researchers have found during the 2022 tech layoffs, companies laid off their U.S. workforce while continuing to bring in more H-1B workers. The top-30 H-1B employers in 2022 laid off at least 85,000 workers, while bringing in 34,000 H-1B workers.^[206]

Entrepreneurs do not qualify for the H-1B visa. The United States immigration system's EB-5 visa program does permit foreign entrepreneurs to apply for a green card if they make a sufficient investment in a commercial enterprise and intend to create 10 or more jobs in the United States.^[207] In 2014, the University of Massachusetts began a program allowing entrepreneurs to found U.S. companies while fulfilling visa requirements by teaching and mentoring on campus, with the university as sponsoring employer.^[208] Self-employed consultants have no visa that allows them to enter the country and perform work independently for unspecified, extended periods. A B-1 visa would permit temporary travel to the U.S. to consult for specific periods.^[209] Consulting companies have been formed for the sole purpose of sponsoring employees on H-1B visas to allow them to perform work for clients, with the company sharing the resulting profit.

According to the USCIS's H-1B Benefit Fraud & Compliance Assessment of September 2008, 21% of H-1B visas granted originate from applications that were fraudulent or had technical violations.^[210] Fraud was defined as a willful misrepresentation, falsification, or omission of a material fact. Technical violations, errors, omissions, and failures to comply that are not within the fraud definition were included in the 21% rate.^[211]

In 2009, federal authorities arrested people for a nationwide H-1B visa scam in which the perpetrators allegedly submitted false statements and documents in connection with petitions for H-1B visas.^[212] Fraud has included acquisition of a fake university degree for the prospective H-1B worker, coaching the worker to lie to consul officials, hiring a worker for which there is no U.S. job, charging the worker money to be hired, benching the worker with no pay, and taking a cut of the worker's U.S. salary. The workers, who have little choice in the matter, are also engaged in fraud and may be charged, fined, and deported.^[213]

Outsourcing companies game the lottery system by filing as many electronic lottery applications as possible for $10 each for jobs that do not exist. In 2023, there were 781,000 lottery entries for 85,000 visas. This was partly the result of different companies submitting the same applicant multiple times. USCIS said there is a high prevalence of fraud with the new electronic registration system.^[214][215]

H-1B issued years 2006-2008

Issued by continent 2005

Issued by nation in 2005

H1-B Visa Labor Condition Applications (2023) by employer

1. United States Citizenship and Immigration Service, "Characteristics of Specialty Occupation Workers (H-1B)," for FY 2004 and FY 2005, November 2006.
2. "Microsoft Cuts 5,000 Jobs as Recession Curbs Growth (Update5)," Bloomberg, 22 Jan 2009 (Microsoft Lays off 5,000 even as they use 3,117 visas in 2006.)
3. Bill Gates, Chairman of Microsoft, Testimony to the U.S. Senate Committee Health, Education, Labor, and Pensions. Hearing "Strengthening American Competitiveness for the 21st Century." March 7, 2007
4. Business Week, Immigration: Google Makes Its Case, 7 Jun 2007.
5. Business Week, Who Gets Temp Work Visas? 7 Jun 2007 (Top 200 H-1B Visa Users Chart)
6. Business Week, Immigration Fight: Tech vs. Tech, 25 May 2007.
7. Business Week, Crackdown on Indian Outsourcing Firms, 15 May 2007.
8. Dr. Norman Matloff, Debunking the Myth of a Desperate Software Labor Shortage Archived 2011-01-26 at the Wayback Machine, Testimony to the U.S. House Judiciary Committee, April 1998, updated December 2002
9. CNN, Lou Dobbs, Programmers Guild Interview & Transcript, August 26, 2005
10. Congressional Record: Illegal Aliens Taking American Jobs, June 18, 2003 (House)
11. Center for Immigration Studies, Backgrounder: The bottom of the pay scale, Wages for H-1B Computer Programmer's, John Milano, 2005.

• Pittsburgh law firm's immigration video sparks an Internet firestorm, Pittsburgh Post-Gazette, June 22, 2007
• "Lawmakers Request Investigation Into YouTube Video" Archived 2008-02-21 at the Wayback Machine Sen. Chuck Grassley and Rep. Lamar Smith ask the Labor Department to look into a video they say documents H-1B abuse by companies. Information Week, June 21, 2007
• October 2007 study by The Urban Institute Archived 2010-04-10 at the Wayback Machine – Into the Eye of the Storm: Assessing the Evidence on Science and Engineering Education, Quality, and Workforce Demand B. Lindsay Lowell and Hal Salzman
• Guestworkers in the High-Skill U.S. Labor Market: An Analysis of Supply, Employment, and Wage Trends "(2013) Hal Salzman, Daniel Kuehn, B. Lindsay Lowell Economic Policy Institute"

• U.S. Department of State information on H-1B visa
• U.S. GAO Report on H-1B Problems, PDF format Archived 2011-05-23 at the Wayback Machine
• H-1B Quota Updates from USCIS