The H-1B visa is a temporary work visa that lets a US employer hire a foreign worker in a specialty occupation, meaning a job that requires at least a bachelor’s degree in a specific field. Most new H-1B petitions are subject to an annual cap and a registration and selection process, but workers already counted against the cap, and some employers, are exempt.
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| Who files | A US employer, for a named worker in a specific job |
|---|---|
| Main forms | Labor Condition Application, then Form I-129 |
| Length of stay | Up to three years at a time, generally six years in total |
| Family | Spouse and unmarried children under twenty-one in H-4 status |
| Attorney fee | A flat fee for the matter, agreed in writing before work begins |
| Government fees | Set by USCIS and paid separately |
Who qualifies for an H-1B visa?
You qualify for an H-1B visa if a US employer offers you a job in a specialty occupation and you hold the degree it requires, or its equivalent. Both halves matter: the job has to need the degree, and you have to have it. An H-1B visa lawyer tests both before the employer registers you.
- A specialty occupation A job that normally requires at least a bachelor’s degree in a specific field or a closely related one. Engineering, accounting, architecture, medicine and many analyst and research roles commonly qualify. A job open to any graduate, in any subject, usually does not. USCIS sets out the test in its H-1B program guidance.
- Your qualifications A US bachelor’s degree or higher in the relevant field, or a foreign degree evaluated as equivalent. Alternatively, education and progressively responsible experience can together equal the degree. Where the job needs a state license, you need that too.
- A real employer A genuine job offer from a US employer. It must pay at least the required wage and control the work.
How does the H-1B cap and selection process work?
Congress sets an annual limit on new H-1B visas, with a separate allocation for holders of a US master’s degree or higher. Because demand far exceeds that limit, the process starts with H-1B cap registration. Employers register each worker electronically with USCIS, and USCIS selects from those registrations. Only then can an employer file a full petition.
- Registration During a short window early in the year, the employer submits an online registration for each worker. It gives basic details about the worker and the job.
- Selection USCIS selects registrations up to the number it expects to need to fill the cap. Regulations set the rules for how USCIS chooses registrations. Those rules have changed in recent years, so we confirm them each season.
- Petition filing Only a selected registration lets the employer file a full petition, within a filing period USCIS announces. Employment then begins at the start of the government’s fiscal year in October.
Selection is not approval. A selected worker still needs a petition that meets every requirement, and USCIS reviews it on the merits.
USCIS announces registration dates, fees and selection rules each season, and they can change from one year to the next. The firm confirms the current rules before advising on timing.
Who is exempt from the H-1B cap?
Some H-1B petitions skip the cap and the registration process entirely. The employer can file them at any time of year. That usually happens because of who the employer is, or because USCIS has already counted the worker.
- Cap-exempt employers Institutions of higher education, nonprofit organizations affiliated with them, and nonprofit or government research organizations.
- Workers already counted Someone who held cap-subject H-1B status in the last six years is generally not counted again. That covers an H-1B transfer to a new employer and an H-1B extension.
- Extensions and amendments A petition to extend or amend an H-1B does not go through selection. Nor does one adding a concurrent part-time employer.
However, a worker moving from a cap-exempt employer to a cap-subject one may need to go through the cap at that point. Ask an H-1B visa lawyer to check before you accept a new offer.
What must an employer do to sponsor an H-1B worker?
Before filing the petition, the employer must obtain a certified Labor Condition Application from the Department of Labor. In it, the employer promises to pay at least the higher of two figures. One is the actual wage it pays similar employees; the other is the prevailing wage for the job in that area.
The employer also promises that hiring the worker will not harm the working conditions of similar employees. It posts notice of the application at the worksite and keeps a public access file. It then files Form I-129 with USCIS, with evidence of the job, the degree and the employer itself.
Sometimes the employer will place the worker at a client site. In that case, it needs evidence of the actual work the worker will do and of its own control over that work. Third-party placements draw close scrutiny, and vague itineraries are a common reason for a Request for Evidence.
How long can you stay on an H-1B visa?
USCIS approves an H-1B for up to three years at a time. An H-1B extension can generally take the total to six years. You can usually recapture time spent outside the United States during that period and add it back.
The six-year limit is not always the end. The American Competitiveness in the Twenty-First Century Act (AC21) allows further extensions. If the employer filed the PERM labor certification or immigrant petition early enough, the worker can extend in one-year increments. A worker with an approved Form I-140 who is waiting only for a visa number can extend in three-year increments. The EB-1, EB-2 and EB-3 green card categories explain that queue. That is one reason employers usually start the PERM labor certification well before year six.
Premium processing is available for most H-1B petitions for a separate government fee. It shortens USCIS’s decision time on the petition. It does not speed up the Labor Condition Application or a consular appointment.
How do F-1 students move to an H-1B?
Many H-1B workers start as F-1 students on Optional Practical Training. Their employer registers them in the cap while they are still working on that training.
Because the H-1B start date falls in October, a student whose practical training would otherwise end before then can benefit from the cap-gap rule. Suppose the employer files a timely cap petition requesting a change of status. Regulations then extend the student’s F-1 status, and often their work authorization, while the petition is pending. If USCIS denies the petition or the employer withdraws it, the extension ends. So the timing is worth mapping out with the employer and your H-1B visa lawyer in advance.
Can your family come with you on an H-1B?
Yes. Your spouse and unmarried children under twenty-one can accompany you in H-4 status for the same period as your H-1B. Children in H-4 status can attend school.
An H-4 spouse cannot work automatically. A spouse can apply for an employment authorization document only in certain situations. Mainly, the H-1B worker must have an approved Form I-140 or an extension beyond six years under the AC21 rules. A child who turns twenty-one loses H-4 eligibility and needs a status of their own.
What goes wrong with H-1B petitions?
Most H-1B problems trace back to the job description, the degree, or a change at work that the petition never reflected. An H-1B visa lawyer reads the petition against the real job to catch these early.
- A job that does not read as a specialty occupation If anyone with any degree could do the duties, USCIS may reject the position.
- A degree that does not match A degree unrelated to the duties needs explanation. Often it also needs an evaluation of coursework or experience.
- Unreported changes A new worksite outside the original area can require an amended petition. So can a material change in duties.
- Gaps in status Unpaid time between jobs, or a start date that slips, can leave a worker out of status. Often nobody notices until the next filing.
If the H-1B does not work out, other routes may fit. People with a strong record in their field sometimes qualify for the O-1 extraordinary ability visa, which has no annual cap.
What does an H-1B visa cost with this firm?
When you hire an H-1B visa lawyer here, the firm quotes the matter as a flat fee, agreed in writing before any work begins. That applies to a cap registration and petition, a transfer or an extension. It does not change because the case takes longer than expected. USCIS sets the government filing fees, including registration, petition and any premium processing fees. They are due separately, and the law requires the employer to pay some of them.
The fees and consultations page explains how quotes work, and the first consultation is free. The wider picture of work visas and green cards, including the L-1 intracompany transfer, is on the employment immigration page.