Getting into the USA on a H1B visa

Introduction

I'm an Australian. I'm working in the USA on H1B status. These are some of my experiences and thoughts on the H1B status.

If you're looking for detailed information about entering the USA and the various visas available, there are several newsgroups you should visit. Much of the information on this page is specific to me, and specific to obtaining H1B status back in 1998. The newsgroups, however, contain a wide range of visa and status experiences, and there are some extremely knowledgeable people who are willing to answer questions. Try these newsgroups:

  • alt.visa.us
  • misc.immigration.usa
  • alt.visa.us.marriage-based

There are also quite a few attorneys who specialise in immigration law, who have a presence on the Internet. Two popular ones are:

They have a lot of information on their sites, and you can sign up for a regular email newsletter.

What's H1B?

H1B status is permission to work in the USA. The H1B visa is the stamp in your passport that proves you have H1B status and allows you to enter the country. H4 is the equivalent for your spouse. It is usually granted in only a few industries. Computer software, engineering and the fashion industry are the commonest, although fashion models are far less common than programmers and engineers.

You cannot apply for H1B status. Only your future employer can apply for your H1B status. The usual steps are:

  • You apply for a job in the USA.
  • Some companies are willing to apply for H1B status for future employees, so they will offer you a job.
  • You accept the job.
  • They apply for H1B status on your behalf, and H4 on behalf of your spouse.
  • You give your future employer's attorney details of your educational qualifications.
  • You wait 3 to 6 months.
  • If successful, you are granted H1B status and your spouse is granted H4 status.
  • Documents are sent to you.
  • You apply at the nearest US consulate for H1B and H4 visas in your passport.
  • You fly to the USA and commence work.

There are limits.

  • You can only work for the company who sponsored you. If you want to work for a different company, they have to apply for H1B status for you. Then you can change jobs.
  • You can't work for anyone unless your H1B status documents name them.
  • Your spouse on H4 status cannot work at all. Cannot even do volunteer or free work if it displaces a paid US citizen.
  • You pay all taxes, including Social Security Tax. Even if you never ever see the benefits from the Social Security Tax.
  • You can stay for 3 years. If you wish to stay past 3 years, your employer must renew your H1B status.
  • If you renewed, you can stay another 3 years. After 6 years total, you must leave the USA for one year. After the one year gap, you can start over again with a new H1B status, if your old employer still wants you or you can find a new employer.
  • If you lose your job, you are out of status, and technically you must leave the country immediately. In practice, you have maybe 30 days to find another job and get another H1B application submitted. Longer than that and you could be deported (in handcuffs), and you can face 5 year, 10 year or lifetime bans from entering the USA again.

The H1B visa is unusual in that it allows immigration intent. It is dual-intent. That is, you can apply for a Green Card once you're in and it isn't considered immigration fraud. Most other visas have a section that asks if you have immigration intent and if you tick Yes, you don't come in, and if you tick No but then apply for a Green Card, it is considered immigration fraud. Many people who enter on a H1B visa apply for Green Cards and get them.

If you have H1B status, and your employer has lodged a Green Card application, and your six year term is over, it now seems to be possible to continue working for the company until your Green Card application is accepted or rejected. If rejected, you must leave the country immediately.

There are some limits to the employer based Green Cards.

  • You don't apply. Your employer applies.
  • If and when your Green Card is granted, you are expected to work for that employer. In practice, two years or longer is fine. Between 1 and 2 years is touch and go. Less than 1 year and you'll probably have your Green Card revoked.
  • Once you have your Green Card, you must maintain a residence in the USA. You must be out of the USA for no more than 6 months at a time. And you must spend at least 30 months out of every 60 months inside the USA. Break these rules, and you stand a very good chance of having your Green Card revoked.

This is America. Even though the laws say one thing, the lawyers say another. If you are threatened with deportation or cancellation of anything, you should see an attorney. They can usually squeeze you through the loopholes and help you avoid big problems. If in any doubt about anything, check in the alt.visa.us newsgroup first for advice, and if that advice is to see an attorney, then pay the money and go and see an attorney.

There are a number of ways to get a Green Card.

  • Employment based Green Cards. As above.
  • Green Card lottery. Apply and hope your number comes up. Don't use companies that promise to increase your chances. They are ripoffs.
  • Get a close family member who already has a Green Card to apply for you. Could take up to 30 years, depending on closeness of relationship and where you come from.
  • Marry a US citizen. Lots of pitfalls with this. Must do it the right way. Consult the newsgroups.
  • Investment Green Card. Don't think about it unless you've got many millions, and are going to hire dozens of US citizens.
  • Extraordinary Ability Green Card. Think Albert Einstein. Think really, really smart people. Then try some other way.
  • Claim asylum. Tough, tough.

24th May 2001

It's been almost two and a half years since I entered the USA and started work, and what changes there have been in the H1B. The quota has increased to 195,000 a year, but this year it didn't even get to the half way mark. The US economy is slowing, the dot-coms are crashing, and the insane grab for programmers and web developers has slowed. Many companies are retrenching their staff, and many employees here on a H1B visa have lost their jobs, can't get new jobs, and have to leave the country.

There's still a dislike of H1B employees. Older programmers claim that companies are hiring H1Bs at cheap rates instead of keeping American employees in the comfort they've become accustomed to. Occasional scandals come to light, and it seems that some companies do indeed hire H1Bs and pay them very little. Some employers abuse the system, and it gives the scheme a bad name. With the new President, there is a rising tide of isolationism here, with the anti-foreigner feeling that accompanies isolation.

The H1B rules changed slightly in the last two years under the Clinton administration. The quota increased to 195,000 a year. If you change jobs, you can start work at the new company as soon as they submit their application for the H1B change. And there's a few other small things. There will be changes under a Bush government, but I have no idea which way they will go.

14th August 1999

Getting into America to work is a long process. Visiting the USA for a holiday is pretty easy if you come from a country like Australia. All you have to do is fill in the Nonimmigrant Visa Waiver Arrival Form, a green I94 form that the hosties hand out during the flight to the USA. That lets you into the country for about 3 months. As a tourist. It doesn't let you work in the USA.

There are a number of visas that allow you to work in the USA. I came in on a H1B visa. This is a visa for skilled workers in technical fields, like programmers and engineers. I didn't apply for this visa - I can't. I was offered a job by a company in the USA, and they applied for the visa. I am now tied to this company. If I lose my job, I have to leave the USA immediately. I can't change jobs unless the new company applies for and obtains a H1B visa for me. Only then can I start work for them, and who knows how long that would take. The visa allows me to stay for 3 years, but it can be renewed for another 3 years. Then I have to leave the USA.

It took about 6 months to get H1B status. There is a companion to the H1B, called the H4. This is for the spouse of a H1B applicant. Note - it has to be a spouse, legally married. Girlfriends, boyfriends, de factos, need not apply. The H4 allows the spouse into the country, but does not allow them to work. It's pretty strict. No paid work, no volunteer work if that displaces a paid US employee. It's safest to live a life of leisure. When I told Anne that she wasn't allowed to work for 6 years, she was so upset about it that she couldn't stop singing for weeks.

Here's the list of steps that the company had to go through to get H1B and H4 status for us, plus the steps that we had to take to get our visas. A lot of this stuff is very complicated to do, and it needs a specialist. The company that hires you usually hires an attorney who specialises in immigration law to fill in the documents and make all the presentations and applications.

Prevailing Wage Determination The company's attorney applies to the Department of Labour for a Prevailing Wage Determination. The DOL does a check and determines the normal wage for your type of job in that part of the country.
Educational Qualifications I'm not sure who does this check, but your future company's attorney submits your academic qualifications to some department and they decide if your qualifications are at least equivalent to a 4 year USA university degree.

I only have a 3 year degree, so I failed the requirement.

So my academic records, work experience, list of industry courses, etc were all submitted to an independent education arbiter. They examine the whole thing and make a determination. For each year you are shy of a 4 year USA university degree, you need 3 years of experience in the field you are going to work in. No degree at all = 12 years experience required. With a 3 year degree, five years part time study towards a second degree, plus industry training courses, plus 22 years experience in the industry, the independent arbiter determined that I had the equivalent of a 4 year USA university degree.

Labour Condition Attestation The attorney applies again to the Department of Labour. The DOL checks that certain conditions have been met. They check that the company has actually advertised far and wide and tried to get US workers to fill the position. They check that the educational conditions have been met. They check that the offered wage meets or exceeds the Prevailing Wage. If all is good, then they approve the application.
H1B Status Application If all the other steps have been successful, the attorney applies to the Immigration Service for H1B status. The INS then checks the applicant and if there are no problems, they grant H1B and H4 status and issue some documents. The documents are sent to us in Australia.
Visa Application We take the documents and go to the US Consulate and apply for a H1B and a H4 Visa. We pay over a chunk of money, and they check us out to see if we are known criminals or drug dealers or something equally nasty. As we are not, we were granted our visas and these cute official pieces of paper were glued into our passports. One thing was interesting. I don't know if they do this for every case, or only for cases where the surnames of married couples are different. They wanted to see our marriage certificate.
Getting in the country This is the final step. You have to fill out the white visa form that the hosties hand out during the flight, and have all your documents with you. After you arrive, you wait in the queue for Immigration. They do a quick final check of you, look at your documents, ask you some tricky questions, and if all is well, they stamp your passport and allow you into the country. You can still be refused entry at this point, which is why it's a good idea to book a return flight.

One of the reasons it took so long to get H1B status is that there's a quota. Until 1998, there was a quota of 65,000 per year. This quota extends from 1st October to 30th September each year. In 1998 for some reason, the quota was filled early, and there was a backlog of about 40,000 applications. So when the new quota of 65,000 became available on 1st October 1998, there were already 40,000 applications in the queue. I don't know why there was such demand in 1998. There appears to be a world-wide shortage of programmers, and there was a lot of demand for programmers to fix the Year 2000 Problems. Anyway, late 1998 the US Government increased the quota temporarily. It's now 115,000 for 1999 and 2000, drops to about 95,000 in 2001 and then goes back to the normal level of 65,000 in 2002.

The H1B scheme gets regular criticism in the USA. Many programmers and engineers are against the scheme completely and want it cancelled. Many employers love the scheme. So there are politicians who listen to both sides and there is a constant tug of war about the H1B. The scheme gets abused. And yet the scheme generally benefits the USA. Older programmers and engineers feel that they are being ignored and replaced by cheaper foreign workers. Others feel that the introduction of foreign workers who will work for much less money is damaging to the industry. Employers claim that they have a lot of trouble finding staff outside of the few glory spots like California and Silicon Valley. There seems to be a consensus that there is a global shortage of programmers and engineers. If the USA wants to retain its pre-eminence in the computer fields, it needs to keep importing staff.

One of the biggest problems is that in countries like Canada, UK, Australia and the USA, there are less and less students going into computer and engineering studies, and less and less graduates coming into a rapidly expanding industry where the demand for skilled workers is high. Like it or not, the computer industry is getting bigger, and will continue to grow rapidly. So much of what we do and use depends on computers today. This all requires engineers and programmers. And there's not enough to go round.

Several schemes have been promoted in the USA to try and solve this problem. When the quotas were increased in late 1998, the application fees for H1B visas were increased to $500. This raises about $75,000,000 US a year and this money is earmarked to improve education and try and persuade students to go into the fields that they are short in. They need the workers now, so they make the foreign workers pay for the future when they won't be needed. This is quite sensible. I have recently read of a new scheme where some senators are proposing that there be no limit on H1Bs, but with two application restrictions. First, it costs $1,000 to apply. Second, the foreign worker must be paid at least $60,000 a year. This would do two things. It would raise about $150 million dollars a year which would be put into promoting technical education. Secondly, it would eliminate the accusations of foreign workers being paid much lower rates than their US counterparts. Companies would have to pay their foreign workers at least the same as their US workers, and so the foreign workers would have to compete on their merits and not on their status of being cheap to employ.

On the other hand, there are calls to abolish the H1 scheme entirely and allow no foreign workers. I don't think this will ever win support while the US wants to stay ahead of the pack in the computer industry.