The H1B visa has long been a popular visa option for those foreign individuals looking to migrate to the United States. Although an H1B visa is an immigrant visa meaning it is a visa that offers a path to US citizenship, however, there are many limitations. The biggest limitation is that individuals have to obtain employer sponsorship or find a company willing to sponsor them in order to enter the pool for H1B visas each year. This in itself is difficult as US employers prefer to hire US individuals to avoid sponsor paperwork and employers are also required to show why hiring a foreign person is necessary for their organization over hiring a US person for the same position.
Since so many foreign individuals have been picked up over the years, especially by large tech companies, the pool for the H1B visa has become oversaturated creating a lottery draw rather than a guaranteed visa attached to a job offer. This means that even individuals who have a willing employer sponsor are not guaranteed an H1B visa in any given year. Due to the high level of applicants, foreign individuals must ensure they are in the pool by April 1st each year to even have a chance to be selected from the draw. If the applicant isn’t chosen in that year, they will not be able to work and will have to re-apply the following year.
In 2022, we have seen the greatest layoffs of tech employees in the United States. It is estimated almost 89,000 workers have lost their job due to a tech bubble burst. This means that those who are on H1B visas and lose their jobs, have a limited time to find a new job or must leave the country. Even those who have been working in the US for years and have built a life. Those with H1B visas also find that because their visa status is tied to an employer they often take positions or stay in positions with less pay and fewer prospects of upward movement in order to preserve their ability to stay in the US.
Green card holders do not and will not face the same issues as H1B visa holders. Those with green cards don’t have a residency tied to employment, meaning, even in the case of job loss they can stay in the US, look for a job with any company, and not be tied to one employer who is sponsoring them.
Finally, the path to a green card and then citizenship through the H1B visa route is long and arduous which means again, that foreign individuals are tied to their sponsors for years until they are able to achieve permanent residency status.
Because of these issues, more and more H1B visa holders are applying for green cards through the EB-5 Program. In addition, due to new legislation, these visa holders may stay in the United States while their EB-5 petition is processing and obtain an Employment Authorization Document within just a few months. This document frees the H1B visa holder from their employer sponsor and allows them to gain employment anywhere in the US, for any company, including starting their own business legally. This new process is called Adjustment of Status concurrent filing and was only introduced in March 2022, spurring greater interest from H1B visa holders already in the United States.
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