The H1B visa program remains one of the most popular routes to residence in the USA, but what is the H1B visa? And why is it so difficult to obtain?
What is the H1B Visa
The H1B visa program is offered by the United States as an option for employers seeking to hire foreign workers in specialized occupations and is classified under the Labor Condition Application (LCA). Specialized occupations are defined as “work requiring a highly skilled and niche application of knowledge”. In order to work in a specialized occupation, individuals must obtain a minimum qualification of a bachelor’s degree in the relevant field. The H1B visa is intended for employers who cannot source talent with the necessary skills from the workforce in the United States market.
H1B Visa Requirements
H1B Visa Eligibility Criteria
In order to be eligible for the H-1B Visa, the employee and employer must be considering the possibility of permanent employment in the future, as well as have the intention of applying for an immigrant visa.
All US employers must submit proof that they satisfy labor standards through the Labor Condition Application process; this is an essential step that serves as a way to protect foreign and domestic workers.
The role must list relevant specialized skills as a requirement, and the potential employee must meet these requirements, and the employee must have the minimum qualification of a bachelor’s degree in the relevant field.
The employer must establish an employer-employee relationship by paying a regular wage to the employee. Furthermore, verification that the employee will be paid the prevailing or the actual wage in the area of employment must be provided, as well as proof that the employee will receive standard benefits.
In addition to the above, the employer must declare any strikes, lockouts, or work stoppages in the relevant occupation that are in the process of labor dispute. The employer must stipulate that return transportation to the employee’s country of origin will be covered in the event that the employment contract is terminated prior to the H1B status expiry.
It is not permitted for an employee to carry out work for another employer during his or her H1B employment, with the exception that the second employer has completed the same H1B process and received a USCIS receipt notice or USCIS approval for new employment.
H1B visas are limited to 65,000 regular applicants (with a qualification less than an Advanced Degree) and 20,000 visas annually for applicants with a US master’s degree or higher. Those exempt from the cap include:
- Employees transferring from one employer to another while on an H1B visa
- Employees renewing the H1B visa for the same or new employers
- Employees working with multiple employers under separate H1B visas
- Employers that fall under the following categories: Higher Education Institutions, Nonprofit organizations affiliated with higher education institutions, Nonprofit research organizations, and government research organizations.
- Under free-trade agreements, there are some Chilean and Singaporean citizens who are eligible for H1B1 visas.
H1B Visa Application Process
The H1B Application Process involves the following steps:
The First stage of obtaining an H1B visa involves an Electronic Registration Process. This process involves the submission of basic information and documents related to the prospective employer and employee. It is considered a mandatory precursor to the H1B visa application process. In order to proceed with electronic registration, employers must create an account on the USCIS website and submit the required initial documents.
The Second step involves the employer filing for a Labor Condition Application, in which a Form ETA-9035 must be submitted. Next, the Employer will submit their petition for the H1B visa. If the application is chosen, the employer will then file the Form I-129 with the USCIS. This includes an approved LCA, the worker’s degree and experience, and proof of offer of employment.
Finally, the employee must file a Form DS-160 at the US embassy and schedule a visa interview. If the application is approved, the employee will obtain the H1B visa stamp in their passport.
Recent updates and changes to the H1B program/Policy Changes in 2025
An important update has been announced for the Fiscal Year of 2026, detailing that beneficiaries are going to be considered once, as opposed to the previous system, which considered multiple registrations filed on a beneficiary’s behalf.
Changes in the visa stamping process
The US government temporarily introduced domestic visa renewals in 2024 and is now considering implementing this change permanently. This change would mean that specialty occupation workers can successfully renew their H1B visas without leaving the United States.
Common challenges and how to overcome them
In order to prevent common obstacles and delays, employers must file an application early, and ensure compliance with all laws and requirements. Moreover. documents have to be detailed and clear with all documentation and classifications specified. Booking visa appointments early must be done by the applicant to prevent re-entry issues. Overall planning in advance, enlisting the support of an immigration attorney, keeping records of documents, and staying updated on immigration policies are essential to a successful application.
The H1B visa is a difficult option for both employers and highly skilled foreign workers considering employment in the United States as the application process is considered to be complicated and therefore should be done with the assistance of an advisor to ensure success. Alternatively, the EB-5 visa is a great option for foreign investors interested in obtaining a Green Card through investment in the United States economy. Compared to the H1B visa, the EB-5 visa does not work on a lottery system and therefore provides more assurance to applicants.
Drawbacks of the H1B Visa
The H1B Visa is decided on a lottery system, which the government sees as the fairest way to deal with the huge number of applicants compared to the spaces available. In 2024, there were over 800,000 applicants for the 85,000 H1B Visas available.
The lottery system does not take into account the salary, skills of the individual, or position seniority, meaning that applicants rely solely on luck to achieve the H1B Visa.
The H1B Visa is also explicitly tied to the job role of the applicant, meaning that if an individual wishes to change their job title, they will need to reapply for the visa, and again enter the lottery system. This makes career progression particularly challenging under this visa.
Finally, as the visa is so explicitly tied to the job role of the individual, if they were to lose their job, they have just 30 days to leave the country, meaning if they have settled down with a family, it can be a challenging visa.
Alternative Options
So which other options do applicants have if they want to live in the USA without restrictions?
The most popular option is the US EB-5 investment programme, which, despite President Donald Trump’s recent announcement, is still available to applicants as usual. The EB-5 visa allows an applicant to live, work, and study in the USA without restrictions, making it a much safer pathway to US residency than the H1B Visa.
The EB-5 Visa Programme requires the applicant to invest a minimum of USD 800,000 in a US business, typically through a Regional Centre licensed by the US Department of Homeland Security. Approximately 30 months after investing, the applicant will receive an initial conditional green card. After holding the conditional green card for two years, the EB-5 applicant can apply for a permanent green card.
If you’re interested in learning more about pathways to US residency or would like to discuss anything in this blog in further detail, please reach out to me directly at Selma.Brahimi@passportlegacy.com
FAQs
1. What is the processing time for an H1B visa application?
The H-1B visa can take up to 5 months for processing, however, including application time it will take longer to obtain the visa.
2. What is the H1B visa?
The H1B visa program is offered by the United States as an option for employers seeking to hire foreign workers in specialized occupations.
