When a person from another country is looking to work in the U.S., what type of employment visa they might be able to pursue depends on their circumstances. For foreign nationals in high-skill professions and industries, such as the technology industry, one option that may be available is the H-1B visa. These are nonimmigrant work visas for individuals who work in specialty occupations.
There are challenges foreign workers can encounter in their efforts to get this type of work visa. For one, there is a cap on how many H-1B visas are issued in a year. Also, various complex issues can come up about the process of applying for such a visa. Additionally, a worker can sometimes run into difficulties in getting the documentation/information they need to help support their efforts to pursue an H-1B visa. Experienced immigration lawyers can provide individuals who are trying to get an H-1B visa to work here in California with guidance on the process of pursuing an H-1B visa and help them with responding to challenges that come up during this process.
Now, in recent times, questions have come up regarding the future of this visa program. The H-1B program has drawn a fair amount of debate and will be going under review. One thus wonders if the program will see any major changes in upcoming months.
California is among the states that might be particularly impacted by any future changes to the H-1B program. This is because, according to recent data, California sees a particularly high level of H-1B visa applications. The data put the H-1B visa application rate in California at 3,051 applications per one million residents. This is one of the highest rates in the country.
So, many employers and individuals here in California may have their eye on what the future holds for this visa program.
Source: CNBC, “Here are the US states – and the companies – that use the most H-1B visas,” Nick Wells and Mark Fahey, April 18, 2017
What is the H-1B Visa?
The H-1B visa is a nonimmigrant visa category issued by U.S. Citizenship and Immigration Services (USCIS) to allow employers to temporarily employ foreign workers in specialty occupations. These occupations require the theoretical and practical application of a body of highly specialized knowledge.
Specialty occupations are commonly found in fields such as:
- Information Technology
- Engineering
- Healthcare and Medicine
- Architecture
- Law
- Accounting
- Finance
- Mathematics
The visa not only supports high-skilled immigration but plays a critical role in maintaining the competitive edge of the U.S. economy in technology and research-driven sectors.
Who is Eligible for the H-1B Visa?
An individual must meet three key criteria:
1. Specialty Occupation
The job must require a bachelor’s or higher degree in a specific specialty.
2. Educational Qualification
The applicant must hold a U.S. bachelor’s degree (or foreign equivalent) related to the specialty occupation.
3. Employer Sponsorship
The application must be submitted by a U.S. employer offering a qualifying position, not by the foreign worker.
H-1B Application Process: Step-by-Step Overview
The process of applying for an H-1B visa includes several legal and procedural steps:
1. LCA Certification
The employer must first submit a Labor Condition Application (LCA) to the Department of Labor, attesting that the employment will not adversely affect U.S. workers.
2. USCIS Petition Filing
Upon LCA approval, the employer files Form I-129 with USCIS.
3. Visa Lottery (if applicable)
If applications exceed the annual cap, USCIS conducts a random lottery.
4. Petition Adjudication
USCIS may approve, deny, or issue a Request for Evidence (RFE) to clarify application details.
5. Consular Processing or Change of Status
If the petition is approved, the applicant may proceed to a U.S. consulate or embassy for visa stamping, or adjust status within the U.S.
The H-1B Cap and Lottery System
Every fiscal year, USCIS issues:
- 65,000 regular H-1B visas
- 20,000 additional visas for individuals with U.S. master’s degrees or higher
Once the cap is met, no additional petitions are accepted unless:
- The employer is cap-exempt (e.g., a nonprofit, research institution, or university).
- The applicant is transferring or extending a current H-1B.
Lottery Timeline
- March: Registration opens
- April–June: USCIS conducts selection and notifies registrants
- June–September: Approved employers file full petitions
Major Challenges Faced by Applicants
- Document Compilation: Educational transcripts, evaluation of foreign degrees, work experience letters
- RFE (Request for Evidence): Additional proof of eligibility may be required
- Denial Risk: Inadequate job role descriptions, mismatched degrees, or insufficient employer financials
- Visa Interview Delays: Wait times at U.S. consulates vary globally
Impact of H-1B Policy in California
California remains one of the most affected states:
- It processes the highest volume of H-1B applications per capita
- Silicon Valley firms are the top petitioners
- Any changes in federal H-1B policy directly impact the tech workforce, startups, and academic institutions
H-1B vs Other U.S. Work Visas: What Are Your Options?
| Visa Type | Purpose | Duration | Dual Intent |
|---|---|---|---|
| H-1B | Specialty occupations | 3+3 years | Yes |
| L-1 | Intra-company transfers | 1–7 years | Yes |
| O-1 | Extraordinary ability | 3 years | Yes |
| TN | Canadian/Mexican professionals | 3 years | No |
| F1 + OPT | Student work | Up to 3 years (STEM) | No |
Understanding these distinctions is crucial in choosing the best path based on your qualifications and career goals.
What Happens if Your H-1B is Denied?
Visa denial isn’t the end. Options include:
- Filing a Motion to Reopen or Reconsider
- Reapplying the following year
- Exploring alternate visas (L-1, O-1, or F-1 OPT to CPT pathway)
- Appealing to the Administrative Appeals Office (AAO)
Legal support during this process greatly increases your chances of success.
Changing Employers While on H-1B
Under the AC21 law, you can transfer to a new employer without being subject to the cap, as long as:
- You are currently in valid H-1B status
- Your new employer files a new I-129 petition
H-1B Remote Work Considerations in 2025 and Beyond
Post-pandemic flexibility has created new questions:
- Employers must update LCAs for new work locations
- USCIS monitors compliance with wage requirements across geographic zones
Remote work can affect eligibility and compliance, especially if employees move out of commuting distance.
FAQs
Can I bring my family with me on an H-1B visa?
Yes, spouses and children under 21 can apply for an H-4 dependent visa. In some cases, H-4 visa holders may also qualify for work authorization.
How long can I stay in the U.S. on H-1B?
Up to 6 years, initial 3 years + 3-year extension. Further extensions may apply under green card processing.
Can I travel abroad while on H-1B?
Yes, but re-entry to the U.S. requires a valid H-1B visa stamp and approval notice.
What documents do I need for H-1B visa stamping?
Valid passport, I-797 Approval Notice, LCA copy, Pay stubs and employment verification, Degree certificates and transcripts
Ready to Apply or Facing H-1B Issues?
At Hussain Gutierrez Law, we specialize in immigration solutions for professionals and employers across California. Our team guides you through every step of the H-1B process, from petition strategy to RFE responses and beyond.
Book a consultation today at HussainGutierrezLaw.com
Let’s build your legal pathway to a successful U.S. career.
