The Rise and Fall of the H-1B Worker

Until recently, most people were unfamiliar with the H-1B visa, except for those seeking to take advantage of this temporary worker category.

Rise and Fall of the H-1B Worker
Kathleen Saenz Poppenger

Kathleen Saenz Poppenger

February 19, 2018 02:54 PM

Until recently, most people were unfamiliar with the H-1B visa, except for those seeking to take advantage of this temporary worker category.

What is an H-1B? And why is there suddenly all the hype?

The Immigration and Nationality Act (INA) authorizes temporary employment of foreigners in a “specialty occupation,” requiring theoretical and practical application of a body of highly specialized knowledge and attainment of a Bachelor degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.[1

The INA limits employment to six years; extensions are allowed under the American Competitiveness in the 21st Century Act (AC21)[2] if the lengthy green card process is underway. There is a cap of new 85,000 H-1B’s per fiscal year, including 20,000 U.S. Master’s degree visas. Congress authorized temporary increases (195,000/year) to meet U.S. employers’ unmet needs, including Y2K-compatible dating of computer systems using 19XX format. This legislation recognized there were not enough U.S. workers to bring these systems into Y2K compliance and represents the peak of the H-1B.

Now that we know what an H-1B is, how do you get one?

A U.S. employer must sponsor the foreign worker and is legally obligated to pay all costs associated with the petition, including legal fees. Filing fees range from $1710 to $2460, including a fraud-detection fee for random worksite visits by Immigration and Customs Enforcement and a mandatory fee dedicated to the training of U.S. workers. By law, these costs are business expenses to be paid only by the employer.

Certification of the H-1B salary is required from the U.S. Department of Labor via a “Labor Condition Application” (LCA).[3] This process seeks to protect U.S. workers’ wages by maintaining the average U.S. wage for that occupation. H-1B employers must sometimes increase the offered salary to meet DOL wage requirements, thus increasing the average U.S. wage. Violators of H-1B/LCA laws are subject to civil fines and debarment from H-1B sponsorship, as well as criminal charges where fraudulent abuse occurs.[4]

The H-1B petition/LCA is filed with the Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS). Upon approval, the worker abroad must apply for an H-1B visa at a consulate (Department of State) then seek admission through Customs and Border Protection.

Employers face multiple government agencies and high expenses to obtain highly-skilled H-1B workers to fill positions that they otherwise are unable to fill. It would be easier and cheaper for employers to hire U.S. workers; clearly there is a need. In FY2018, 199,000 petitions were filed for the available 85,000 spots, down from 236,000 in FY2017.[5] Due to extremely high demand, USCIS must distribute H-1B’s via a lottery. Although USCIS returns unused filing fees, legal fees are not contingent on lottery selection. Thus, this year, employers had about a 42.7 percent chance its petition would be selected and a 100 percent chance the legal fees have been earned.

Why all the hype?

The presidential order on Buy American, Hire American provides some insight. This executive order seeks to rigorously enforce the laws governing foreign workers. Despite being already highly regulated, alarmists claim H-1B employment steals U.S. jobs and depresses wages, questioning the integrity of the entire H-1B program. The EO mandates DHS compliance reports.

Enter the smoke and mirrors.

In FY2017, USCIS issued a record number of H-1B requests for evidence (RFEs), questioning things like the wage (a DOL concern) and whether clearly professional occupations, such as engineers, are Bachelor degree-level positions. Per its November 29, 2017, report,[6] USCIS issued 43,276 more RFEs than FY2016 (up 8.1 percent), demonstrating its amazing efforts to “rigorously enforce” the laws.

In summary, 92.5 percent of H-1B petitions were approved in FY2017, down just 1 percent from FY2016. However, employer frustration is increasing dramatically, as are RFE legal fees. As well, DHS may soon severely limit statutory AC21 H-1B extensions[7] and revoke regulations authorizing employment of spouses of H-1B workers stuck in the green card backlog.[8] Thus, smoke and mirrors may become hard-hitting reality for U.S. companies, current/future H-1B workers, and their families, all of whom may decide to set up shop/seek employment outside the United States. And so begins the downfall of the H-1B.


[1] INA §101(a)(15)(H)

[2] Pub. L. 106-313 (October 17, 2000)

[3] INA§212(n)(1)

[4] See


[6] USCIS Report: I-129, Petition for a Nonimmigrant Worker, Class Preference: H-1B, Receipts, Completions, and Requests for Evidence (RFE) Sent, FY15-FY2018 (Through November 29, 2017).

[7] As reported at

[8] Proposed rule stage:


Kathleen Poppenger has extensive experience working in the field of immigration and citizenship law since 1986. She focuses her practice in the area of employment-based immigration matters, including H-1B workers, L-1 intra-company transfers, E-1/E-2 treaty traders/investors, NAFTA visas, multinational managers, employment-based permanent residence, and I-9 compliance. Kathleen has received recognition as Best Lawyers® “Lawyer of the Year”; DBusiness Top Lawyers – Immigration Law; Women in Law Top Peer-Nominated Lawyers; Best Lawyers in America© in Immigration Law; Best Attorneys in Michigan; Leading Lawyers for Immigration Law: Employment; Metropolitan Registries Professionals Who’s Who, Top Executives, Professionals and Entrepreneurs; International Women's Leadership Association, Outstanding Leadership; Michigan Lawyers Weekly Top Attorneys in Michigan; and DBusiness Top Lawyers in Metro Detroit.

Related Articles

U.S. Business Immigration: Year-in-Review

by Christian S. Allen

For more reasons than are probably appropriate to include here today, 2017 will be forever be burned into the memories of everybody in the U.S. immigration industry, and all HR and legal professionals who were involved in hiring and/or employing foreign workers in the U.S. No matter your political persuasion, 2017 turned out to not be anything like we all expected at the beginning of the year, fol

U.S. Business Immigration: Year-in-Review

Maximizing Your Chances of Approval With an Immigration Attorney

by Best Lawyers

Immigrating to the U.S. can be a complex and lengthy experience. In this article, Best Lawyers evaluates how an immigration attorney can help along the way.

Department of Homeland Security logo with American flag in the backdrop

Maximizing Your Chances of Approval with an Immigration Attorney

by Best Lawyers

Immigrating to a new country is often a complex, arduous and sometimes costly process. To maximizing your chances of approval on your immigration journey, seek the counsel of an experienced immigration attorney.

View of the Statue of Liberty with birds in backdrop

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules

by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Paying It Forward

by Best Lawyers

One woman’s journey from immigrant daughter to immigration attorney: her passion, purpose, and pursuit of excellence.

A Woman's Journey From Immigrant Daughter to

The Price of Admission

by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

WATCH: Supreme Court Rules DACA Stays

by Best Lawyers

Three immigration law attorneys join the CEO of Best Lawyers to discuss the Supreme Court's decision to block the Trump administration's effort to stop the DACA program.

Panel: DACA SCOTUS Ruling

Cost of Entry

by Best Lawyers

As naturalization fees increase, a local nonprofit provides financial relief for immigration

Financial Relief for Immigration in Florida

Traversing the Immigration Frontier

by Best Lawyers

Brian Graham Interview LOTY

There Is Hope after the H-1B Cap: Alternatives to the H-1B Visa

by Meredith W. Barnette

Alternatives and options if the change in H-1B visas applies to you or your business.

H-1B Visa Alternatives for 2018

Issue Spotting Guide for Assessing Inbound to U.S. Travel Issues

by Kathleen M. Peregoy

This guide is intended to serve as a resource for management and human resources representatives when making decisions and advising employees/management on travel and immigration-related concerns.

Guide for Assessing Inbound to U.S. Travel Is

Make the Workforce American Again

by Michael J. Wildes

The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations, including jobs in technology, engineering, science, architecture, accounting, and business.

Make the Workforce American Again

The Inside Wall

by Charla Truett

Are bricks being stacked up against employment-based immigration?

The Inside Wall

The New Business Immigration Regime

by Christy Nguyen

Five things executives and HR should do.

Business Immigration Regime

Trump and Immigration: Separating Truth from Fiction

by Harlan G. York

Deportations aren’t up, but the people who are being deported are more “newsworthy.”

Trump and Immigration

Myers Thompson: A Leading Partnership in Immigration Law

by Sean Stonefield

As part of its practice, Myers Thompson focuses on helping companies manage their internal immigration policies.

Minnesota Immigration Law

Trending Articles

How Palworld Is Testing the Limits of Nintendo’s Legal Power

by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The U.S. Best Lawyers Voting Season Is Open

by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer

by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers Voting Is Now Open

by Best Lawyers

Voting has begun in several countries across the globe, including the United States, the United Kingdom and Europe. Below we offer dates, details and answers to voting-related questions to assist with the voting process.

Hands holding smartphone with five stars above phone

Inflation Escalation

by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards

by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

Announcing The Best Lawyers in South Africa™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

Presenting the 2024 Best Lawyers Family Law Legal Guide

by Best Lawyers

The 2024 Best Lawyers Family Law Legal Guide is now live and includes recognitions for all Best Lawyers family law awards. Read below and explore the legal guide.

Man entering home and hugging two children in doorway