What are some of the advantages and disadvantages of H1B Visas?

Pros and Cons of H1B visa

H-1B visa Path to U.S. Green Card

H-1b visa is one of the most popular work visas in the United States. It allows the visa holder to work in a specialized field of profession for a limited period of time. During the H1B employment, you are eligible to apply for legal permanent residence (employment green card) through your employer from within the United States. Thus, H-1B visa not only allows you to work legally in the U.S. but it also provides a path to U.S. citizenship.

H-1B visa Allows Dual Intent

Generally, a non-immigrant visa does not allow you to have the intent to live permanently in the U.S. So, while on a non-immigrant status, if you want to apply for a green card, you will likely need to leave the U.S. and process the application at your home country. One of the advantages of a H1B visa is that it allows duel intent. That means, while working as a H1B worker in the U.S., you are allowed to apply for a employment based green card or marriage based green card, without the need to leave the country. Essentially you are adjusting your status from a H1B status to a permanent residence status, by way of adjustment of status process.

If for some reasons, an H1B visa holder is not eligible to adjust status in the US, the green card application will have to be filed via the Consular Processing. Consular processing is an immigration process where you apply for the immigration visa at the overseas US Consulate.

H4 Dependents can Work

H4 dependent spouse is generally eligible to file a work authorization (I-765) if the H-1B non immigrant has an approved I-140 immigration visa or has been granted an extension of authorized to stay under the AC21 Act.

Change Job on a H1B Visa

During the H1B visa holder’s term of stay, there is also the possibility of changing employer. According to the American Competitiveness in the Twenty-First Century Act of 1998 (AC21), special provisions are made for H1B workers to change jobs. This portability allows employees already on H1B status to change jobs without losing their H1B status.

The new employer must file an H1B on behalf of the employee, and the H1B visa holder must retain their valid status and employment until the new petition is filed and approved. This same AC21 Act allows H1B holders to extend their status past 6 years, without having to leave the country. In order to qualify, the H1B worker must have applied for permanent residence status and meet some specific requirements outside the scope of this article. These AC21 benefits are applied for through the regular H1B extension application, and are meant to help H1B workers avoid elongated processing waits that put status at risk.

H-1B Visa Limited Cap

Another issue that comes up with H1B visas is the 65,000 per year H1B cap. When the cap is met, applicants must wait until the next fiscal year for a visa number to become available. Since 2005, there have been an additional 20,000 visa numbers made available to graduates of U.S. master’s programs or degrees of higher learning. Beside this exception, a few other H1B applicant groups are exempt from the cap, including applicants filing through institutions of higher learning, non-profit research organizations, government research organizations, and physicians taking jobs on specific government waivers.

Unfortunately, the primary drawback for H1B visas are there are too few of them. For example, for the 65,000 H1B visas and 20,000 US Master’s Cap H1B visas there were 172,000 petitions received in April 2014 for employment beginning October 1, 2014. Consequently, in years where there are too many petitions for the limited available H1B visas, USCIS conducts a random lottery. Unfortunately, not all petitions are accepted in the lottery and not adjudicated.

Another disadvantage in recent years is that because of the limited amount of H1B visas, practically speaking, cap subject petitions must be filed during the one or two weeks H1B registration period. To register, employers or their immigration attorneys must do their due diligence for the online H1B registration. This pre-registration step is important because information such as job duty, prevailing wage, work site, OPT gap cap issues etc….will have to be taken into considerations for the registration. Ultimately, employment plans by both the employer and the H1B worker must be timed according to the H1B lottery in April and the beginning employment date in October.

Hire an experienced Chicago H-1B Attorney

With over 30 years of collective experience, our immigration attorneys have helped over hundreds of businesses and foreign professionals to successfully obtain their H-1b visas. Contact the Cipolla Law Group online or call us at (773) 687-0549 for a consultation. We speak Chinese, Spanish, French, Italian and are conveniently located in downtown Chicago and Lincoln Park.