In recent days, a debate between Elon Musk and X users has renewed scrutiny of the H-1B visa.
Here are some key facts about the work visa, which is unpopular with many Americans but a favorite of Big Tech.
What Is an H-1B?
The H-1B, created by the 1990 Immigration Act, is a temporary visa that allows nonimmigrants to legally work in the United States in “specialty occupations.”
Immigration law defines “specialty occupations” as ones that require at least a bachelor’s degree and involve “theoretical and practical application of a body of highly specialized knowledge.”
H-1B visas are awarded through a yearly lottery.
In practice, most H-1B visa holders work in programming and related areas.
A nonimmigrant holding a H-1B visa is only permitted to work for the employer that sponsors him or her.
That employer must also demonstrate that the applicant will be paid at least either the prevailing wage or the employer’s actual wage, whichever is higher.
The H-1B lasts three years but can be extended for up to six.
Although it is a temporary visa, H-1B holders can hold it while also seeking a green card, a position known as “dual intent.”
Employers typically do not have to seek out qualified U.S. workers ahead of seeking H-1B applicants. That changes if the employer is H-1B dependent.
The H-1B is sometimes confused with the H-2B, a visa for temporary nonagricultural workers.
The H-1B is also distinct from optional practical training (OPT), an uncapped temporary employment authorization for students or new graduates on an F-1 visa.
Employers of OPT recipients do not have to pay payroll taxes for those workers, effectively incentivizing the employment of foreigners over American students and recent graduates.
How Many H-1B Holders Are There?
The annual cap for the H-1B visa is 65,000.
However, various changes and exemptions approved by Congress have swollen the number of annual H-1Bs.
Twenty-thousand additional slots are open for those with advanced degrees from the United States.
In addition, government research organizations, universities, and nonprofit research organizations are exempt from the cap.
H-1B renewals and other non-new petitions also don’t count toward the cap.
In 2024 alone, 188,400 H-1B registrations were approved by U.S. Citizenship and Immigration Services (USCIS).
to work in the United States.Just days ago, the Department of Homeland Security announced its final new H-1B rule intended to offer “greater benefits and flexibilities” for H-1B holders and employers.
Where Do H-1B Holders Work?
H-1B holders could theoretically be spread broadly across many industries. In reality, though, tech dominates.
on H-1Bs to Congress.That year, 54 percent of beneficiaries worked in programming or systems analysis, while 7.9 percent worked in some computer-related area that was not elsewhere specified.
The largest sponsors of H-1Bs include familiar tech giants such as Amazon, Google, Microsoft, Apple, and Musk’s Tesla.
They also include more obscure companies such as Cognizant Technology Services, found liable in October for intentional discrimination against non-Indian, non-South Asian employees in a lawsuit filed by three white U.S. citizens.
Another top H-1B recipient is the Indian multinational technology company Infosys, which in 2015 faced a Department of Labor investigation over its use of H-1Bs.
It reported it was cleared that year.
The company paid $34 million in 2013 to end a similar probe of its alleged misuse of temporary visas.
Where Do H-1B Holders Come From?
H-1B visa holders are overwhelmingly from India, with 72 percent of approved H-1B petitioners in 2023 originating from that country.
Another 11.7 percent came from China.
Much smaller percentages came from the Philippines, Canada, South Korea, Mexico, Pakistan, and other countries, with a heavy representation from Asia.
What’s the Debate?
Supporters of the H-1B program assert that it is crucial for supplying the United States with tech talent it would otherwise lack.
“The reason I’m in America along with so many critical people who built SpaceX, Tesla, and hundreds of other companies that made America strong is because of H1B,” Elon Musk wrote on X on Dec. 27 in response to a comment critical of his pro-H-1B stance.
A 2024 National Science Foundation report noted that noncitizens and foreign-born Americans are a significant source of U.S. STEM talent.
“More than 50 percent of doctorate holders that worked as computer and mathematical scientists [58 percent] and engineers [56 percent] were foreign-born,” the report states.
President-elect Donald Trump defended the H-1B, according to reporting from the New York Post, saying he has relied on it on his properties and calling it a “great program.”
Critics cite a litany of abuses and troubling incidents, ranging from the exploitation of foreign labor through wage theft to the intentional discrimination against Americans, as in the case of Cognizant.
They point to layoffs at Disney, where some American citizens were required to train their foreign H-1B replacements.
In 2023, the Economic Policy Institute assessed that the 30 companies that lead in H-1B employment hired 34,000 H-1B workers in 2022 even as they terminated 85,000 or more of their staff over roughly the same period.
Critics also question the assertion that the country lacks talent.
An analysis from the Center for Immigration Studies found that some 11.5 million degree holders in STEM, both immigrant and native-born, were not working in STEM.
that the H-1B and similar visas were developed as part of adeliberate strategyto reduce the wages of American doctors of philosophy and other knowledge workers.After initial defenses of the H-1B, Musk on Dec. 28 acknowledged the program is “broken and needs major reform.”