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H-1B Specialty Occupation

  • To qualify to sponsor an H-1B worker, the company must:

    1. Offer a Specialty Occupation: The job must require at least a bachelor’s degree or its equivalent in a specific field directly related to the role.

    2. File a Labor Condition Application (LCA): The employer must attest to the Department of Labor (DOL) that they will pay at least the required wage, which is the higher of the actual wage paid to similar workers at the company or the prevailing wage for that occupation in the local area.

    3. Maintain a Public Access File (PAF): For every H-1B worker, employers must create a PAF within one business day of filing the LCA. This file must be available for public inspection and include a copy of the certified LCA, proof of wage levels, and a summary of benefits.

    4. Maintain an Employer-Employee Relationship: The company must have the legal right to hire, pay, supervise, and fire the worker.

    5. Site Visits and Oversight: The Fraud Detection and National Security (FDNS) Directorate may conduct unannounced site visits to verify the employer’s legitimacy and that the worker is performing the duties described in the petition. Failure to cooperate can lead to petition revocation.

  • The prospective H-1B worker must:

    1. Possess Required Education: Hold a U.S. bachelor's degree or higher (or foreign equivalent) in the specific specialty required.

    2. Equivalency (The "3-for-1" Rule): If a worker lacks a degree, USCIS may consider three years of specialized training or work experience as the equivalent of one year of college education.

    3. Hold Necessary Licenses: If the occupation requires a professional license (e.g., doctor or lawyer) in the state of employment, the worker must generally hold that license.

  • The H-1B is subject to an annual numerical limit:

    1. Regular Cap: 65,000 visas.

    2. Master’s Exemption: 20,000 additional visas for those with a U.S. master’s degree or higher.

    3. Lottery Mechanics: All properly submitted H-1B registrations—including those for U.S. master’s degree holders—are first entered into the initial 65,000 regular-cap lottery. Any U.S. master’s degree registrations not selected in that first lottery are then entered into the separate 20,000 master’s-cap lottery, giving advanced-degree holders two chances at selection and therefore higher overall odds.

    4. 2026 Selection Update: Effective February 27, 2026, a new "weighted" process will prioritize higher-paid and higher-skilled workers.

  • Certain employers are not subject to the 85,000 annual limit and may file petitions at any time:

    1. Institutions of Higher Education: Public or nonprofit accredited universities.

    2. Affiliated Nonprofits: Organizations like teaching hospitals or research labs with formal written affiliation agreements with a university.

    3. Research Organizations: Nonprofit or governmental organizations primarily engaged in scientific research.

    4. "Employed At" Exemption: For-profit employees may be exempt if they perform duties physically at a qualifying institution (e.g., a private physician working at a nonprofit hospital).

  • Unlike most other statuses, H-1B workers benefit from Portability under the American Competitiveness in the 21st Century Act (AC21):

    1. Work Authorization Upon Filing: A worker already in H-1B status may begin working for a new employer as soon as the new H-1B petition is filed with USCIS, rather than waiting for an approval.

    2. Eligibility: The worker must have been lawfully admitted, not have worked without authorization, and be in valid H-1B status at the time of the new filing.

  • H-1B status is a "Dual Intent" classification.

    1. Immigrant Intent: Unlike many other visas, H-1B holders can legally seek permanent residency (a Green Card) without jeopardizing their current status or future renewals.

    2. Green Card Milestones: Employers typically sponsor H-1B workers for residency through the PERM Labor Certification and I-140 Immigrant Petition.

    3. Extensions Beyond 6 Years: If a Green Card application reaches certain milestones (e.g., a pending labor certification for 365 days or an approved I-140), the worker may extend their H-1B status beyond the standard 6-year limit.

    1. Registration: Employer registers the worker (typically in March) and pays a $215 fee.

    2. LCA & Filing: If selected, the employer files an LCA with the DOL and then Form I-129 with USCIS.

    3. Filing Fees (depends on # of employees):

      1. I-129 Fee: $780 or $460

      2. Asylum Fee: $600 or $300

      3. Anti Fraud Fee: $500 (only required for initial H-1B petition)

      4. ACWIA FEE: $1,500 or $750

    4. 2025 Supplemental Fee: Per a September 2025 proclamation, a $100,000 fee is required for new H-1B petitions for workers outside the U.S. (consular notification). This does not apply to extensions or change of status for those already in the U.S.

    1. Initial & Extensions: Up to 3 years at a time.

    2. Maximum Stay: Generally 6 years, unless eligible for extensions due to a pending Green Card.

    1. Spouses and unmarried children under 21 may accompany the H-1B worker in H-4 status.

    2. Education: H-4 dependents are permitted to attend school in the U.S.

    3. Work Authorization: Generally, H-4 dependents cannot work. However, H-4 spouses may apply for an Employment Authorization Document (EAD) if the H-1B holder has reached certain stages of the green card process (specifically an approved I-140 petition).

The H-1B visa allows U.S. employers to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge. This program is intended to help employers obtain needed business skills when they cannot find qualified U.S. workers, while including protections to ensure U.S. workers are not adversely affected.

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