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Article by Mohan Babu


H1-B visa: Complexities and restrictions

Highlighting on the restrictive nature of H1-B visa, Mohan Babu says that the slowdown has resulted in lesser reliance on this “gateway” to the US 

Over the weekend, I was chatting with my brother, who is based in Bangalore; after a few pleasantries, the topic veered towards life and a career here in the US. Manoj started telling me about the impact of layoffs on Bangalore’s job market how a number of people who were laid off in the US were now looking for jobs in India. He added, “If you are thinking of packing your bags and coming home, don’t. Now is not the time, since you will only be adding to the statistics of the burgeoning US returned guys out here.” He also added that most of the guys who came back from the US didn’t realise that they would have to leave the US before the expiry of their visa. This set me thinking about the H1-B visa.

Most Indians I speak with are either bedazzled by, or are totally ignorant of the intricacies involved in the H1-B process. In this article, I will try to shed some light on the process.

Each nation in the world has highly protective laws in place to safeguard the livelihood and to secure work for their citizens. Incidentally, even India is highly protective of its workforce and it is extremely difficult for a foreigner to legally come and work anywhere in India. Needless to say, Western nations have been highly protective of their workers and do not want a mass of foreigners taking away their jobs.

The exception to this rule has been with respect to computer professionals. In the late eighties and early nineties, Western countries started reaping the benefits of large-scale computerisation and automation. This in turn increased their productivity and bolstered their economy. However, they were not prepared for the sudden increase in demand for programmers, analysts and software professionals to build, maintain and manage their systems.

A number of countries including the US, UK and Canada realised the need for software professionals and as a ‘stop gap’ measure relaxed their labour laws in order to allow the entry of foreigners with these specialised skills. In the US, companies were allowed to bring temporary workers on a visa known as the ‘H1-B’. In other countries, it is known differently; for instance, in the UK and Singapore, it is called the ‘work permit’. By whatever name it is called, one thing is certain, it is a “temporary” visa that allows a foreigner to live and work in the country for a specified period of time, after which they are expected to return to their native lands.

During the surge in the economy that we experienced in the nineties, H1-B helped employers get access to a big pool of worldwide workforce, talented in computer systems design, analysis and testing. Of course, many companies needed additional people to manage their Y2K projects. India, incidentally managed to bag over 50 per cent of H1-B visas’ during 1998 to 2000. Of course, when the economy started souring, many people lost their jobs. H1 holders were mortified to find out that they would have to pack up and leave the US if their employment was terminated and they were “out of status”. In a slowing economy, many employers are unwilling to sponsor new visas and hence many people are finding it hard to switch jobs after being laid off.

The H1-B documentation process begins when an employer petitions the US government, requesting permission to allow a prospective employee to come, live, and work in the US. This application process is archaic and complex and is generally done by specialised attorneys hired by the company. People ask me how long the visa approval takes, and if it is possible to verify the status of the process after an application has been filed. The processing times are extremely volatile. Although most immigration attorneys have a ballpark estimate of the current processing time, it is extremely difficult to predict how long a particular case is going to take. 

One of the most important things about the H1-B visa is that it is extremely restrictive in nature. Once a person comes to the US on a H1-B, he/she is expected to work for that employer who had sponsored the paperwork. Switching jobs would mean going through the same process with the new employer. After the expiry of the visa or on termination of employment, the person is expected to leave the country, unless they can find another employer willing to sponsor a H1-B. 

Most employers in the US are either unaware of or unwilling to jump the legal hoops to get an employee sponsored on H1-B. Of course, there are a number of large employers and software houses who are adept at this process. An interesting list of top sponsors in the US can be found at Because of the complex maze one must go through, a number of body shoppers have a field day sponsoring H1-B visas’ placing the employees at client sites and skimming off profits. Some have even gone as far as to compare it with indentured labour; this is partly the fault of gullible youngsters in India and elsewhere who succumb to the ‘Get to US quick’ schemes promoted by unscrupulous middlemen. Of course, as the recent Joshi case in California has shown, even the so-called bonds or agreements that the body-shoppers try to enforce hold little water. 

If there is any good coming out of the US slowdown, it is the fact that the tribe of body-shoppers is slowly vanishing. This is not to say that jobs for H1-B visa holders will vanish, but that employers will become more selective of the people they employ and they will increasingly bypass smaller middlemen. Large Indian software houses like Infosys, TCS, Wipro, HCL, CBSI etc will continue to bag large projects in the US and will send a number of employees on H1-B. Some industry pundits are also predicting that outsourcing (of large projects) to India will continue to grow, leading to lesser reliance on H1-B. 

One thing is for sure, although H1-B visa is not going away anytime soon, but the means of “get to the US quick” is definitely undergoing a change.

points to remember

  • The application for H-1B visa involves a very complex process, generally done by the employer’s lawyers. 
  • The employer is legally required to pay for the cost of sponsoring the visa. 
  • It can be sponsored for a maximum period of six years after which the employee must leave the country. 
  • If employment is terminated during any time, the employer must give the employee an air ticket with all the wages/salary due. 
  • H1-B employees cannot be kept on “Bench without pay”. They must be paid during the bench period. 

(The information contained in this article is not legal advice and should not be substituted for legal advice.)





About the Author

  • A Bio and profile of the author, Mohan Babu, can be found at his homepage
  • Mohan has authored a book on Offshoring and Outsourcing (Publisher McGraw Hill, India), a link to which can be found here
  • Mohan has also authored an Online book on "Life in the US," available for free download.
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    ©Mohan Babu: All Rights Reserved 2005

    Mohan Babu is an international consultant trying to find the ‘sweet spot’ where IT meets business. E-mail: mohan He is also the author of a recent book on "Offshoring IT Services"

    All rights are reserved. Mohan Babu ("Author") hereby grants permission to use, copy and distribute this document for any NON-PROFIT purpose, provided that the article is used in its complete, UNMODIFIED form including both the above Copyright notice and this permission notice. Reproducing this article by any means, including (but not limited to) printing, copying existing prints, or publishing by electronic or other means, implies full agreement to the above non-profit-use clause. Exceptions to the above, such as including the article in a compendium to be sold for profit, are permitted only by EXPLICIT PRIOR WRITTEN CONSENT of Mohan Babu. 

    Disclaimer: This document represents the personal opinions of the Author, and does not necessarily represent the opinion of the Author's employer, nor anyone other than the Author. This Article was originally published in Express Computers


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