"H" Visa Limitations and Potential Problems

Temporary visas in the H classification are subject to numerical limitations imposed by Congress. What this means is that receipt of a visa is not a guarantee of immediate entry into the country. If the annual limit is reached, an alien may have to wait until a later time to be eligible for entry, even though he or she has been granted a visa. In addition, the different classes of H visa have different processing times; an H-1B will be processed more quickly by the USCIS than an H-2B. Visas in the H class may be extended; H-1s may be extended for a total stay of not longer than six years, while H-2s may be extended for a maximum stay of three years.

A fast-paced economy in which employees often change jobs and whole companies are bought and sold can also create trouble for H-1B visa holders. The visa is employer specific, granting the alien permission to perform a particular job for a particular employer. If the alien wishes to change jobs, the new employer must secure a new H-1B covering the employee. The employee cannot simply quit the first job and accept the second. If the employer for whom the alien works is bought out or merges with another company, a new or amended petition may be required.

Employer's Obligations: Department of Labor

An employer must file a petition with the Department of Labor seeking labor certification before a foreign national can apply for a temporary worker visa. The employer must show that United States workers are not available to fill the position and that wages are working conditions meet regional standards. A single employer usually files this petition. An exception is made for agricultural producer associations, who are allowed to file as joint employers. There are annual caps on some types of temporary worker visas. 

Other Types of Temporary Work Visas

Several other visas also permit aliens to work temporarily in the United States:

• The L-1 visa applies to intra-company transferees, specifically, employees of a foreign company coming to work in an U.S. office of the company. Typical circumstances in which an L-1 visa is appropriate involve an executive, manager or employee with specialized knowledge who comes from the home office to assist with operations in the U.S. office.