H-1B Specialty Occupation Visa

What is the H-1B Visa?

The H-1B is a **nonimmigrant work visa** that allows U.S. employers to temporarily employ foreign workers in **specialty occupations** — positions that require at least a bachelor's degree or equivalent in a specific field. It is the most popular employment-based visa in the United States.

**Key features:**

• Issued for an initial period of **3 years**, extendable to **6 years**.

• **Dual intent** — you can pursue permanent residency (green card) while on H-1B.

• Employer must pay at least the **prevailing wage** for the position.

• Subject to an **annual cap** with a lottery system.

• Allows the holder to work **only for the sponsoring employer** (unless porting).

Eligibility Requirements

To qualify for an H-1B visa, both the **position** and the **worker** must meet specific criteria:

**The Position Must Be a Specialty Occupation:**

1. A bachelor's or higher degree (or its equivalent) is normally the minimum requirement for the position.

2. The degree requirement is common to the industry, or the job is so complex that it can be performed only by an individual with a degree.

3. The employer normally requires a degree or its equivalent for the position.

4. The nature of the specific duties is so specialized and complex that the knowledge required is usually associated with the attainment of a bachelor's or higher degree.

**The Worker Must:**

• Hold a U.S. bachelor's degree or higher in the specific specialty, **OR**

• Hold a foreign degree equivalent to a U.S. bachelor's or higher in the specialty, **OR**

• Hold an unrestricted state license, registration, or certification to practice the specialty, **OR**

• Have education, training, or progressively responsible experience equivalent to a U.S. degree (generally 3 years of experience = 1 year of education).

The H-1B Cap & Lottery

The annual H-1B cap is set at **65,000 visas** for the regular cap, with an additional **20,000** for beneficiaries who hold a U.S. master's degree or higher (the "master's cap").

**How the Lottery Works:**

1. **Registration Period:** Employers submit electronic registrations during a designated window (typically March).

2. **Selection:** USCIS conducts a random lottery if registrations exceed the cap.

3. **Filing:** Selected registrants have a filing window to submit full H-1B petitions.

**Cap-Exempt Employers:** Certain employers are not subject to the cap, including:

• Institutions of higher education

• Nonprofit research organizations affiliated with a university

• Government research organizations

**Selection order (since FY2020):** USCIS first runs **all** registrations (regular and master's-eligible) against the 65,000 regular cap, then runs the **remaining U.S. master's-eligible registrations** against the 20,000 master's cap. This effectively gives master's-degree holders two chances at selection — it does **not** mean unused master's-cap numbers later "roll into" the regular pool.

LCA & Prevailing Wage Requirement

Before filing an H-1B petition, the employer must obtain a certified **Labor Condition Application (LCA)** from the Department of Labor.

**The employer attests to:**

1. **Prevailing Wage:** The H-1B worker will be paid at least the prevailing wage or the actual wage paid to similarly employed workers, whichever is higher.

2. **Working Conditions:** Employment will not adversely affect the conditions of other similarly employed workers.

3. **No Strike/Lockout:** There is no strike or lockout at the place of employment.

4. **Notice:** The employer has provided notice of the LCA filing to the bargaining representative (if any) **and** has posted hard-copy or electronic notice at every place of employment for 10 consecutive business days.

**Prevailing Wage Levels (OES):**

• **Level I:** Entry-level positions (17th percentile)

• **Level II:** Qualified positions (34th percentile)

• **Level III:** Experienced positions (50th percentile)

• **Level IV:** Fully competent positions (67th percentile)

Application Process

**Step 1: Employer Files LCA (Form ETA-9035)** The employer files the LCA with the DOL, which is usually certified within 7 business days.

**Step 2: Employer Files I-129 Petition with USCIS** Once the LCA is certified, the employer files Form I-129 (Petition for Nonimmigrant Worker) with USCIS along with supporting documentation.

**Step 3: Premium Processing (Optional)** Employers can file Form I-907 for premium processing, guaranteeing a response within **15 business days** for an additional fee. The fee is set per form type — for I-129 (H-1B) and I-140 petitions, the current premium processing fee is **$2,965** (last adjusted by USCIS in February 2024 under the Stopgap Measures Act inflation adjustment).

**Step 4: USCIS Adjudication** USCIS may approve, deny, or issue a **Request for Evidence (RFE)**. If an RFE is issued, the petitioner typically has 60-87 days to respond.

**Step 5: Visa Stamping (if outside the U.S.)** If the worker is abroad, they must attend a visa interview at a U.S. consulate.

**Step 6: Entry & Admission** The worker can enter the U.S. up to 10 days before the start date on the petition.

H-1B Portability & Changing Employers

One of the H-1B's most valuable features is **portability** under the American Competitiveness in the Twenty-First Century Act (AC21).

**Key Rules:**

• You can begin working for a new employer as soon as the new H-1B petition is **filed** (you do not need to wait for approval).

• You must have been in valid H-1B status at the time the new petition is filed.

• The new petition must be non-frivolous.

**Changing Employers:**

• New employer files a new H-1B petition (not subject to the cap if you were already counted).

• You are **not cap-exempt** if your H-1B was previously revoked or you left the U.S. for more than one year.

**Concurrent Employment:**

• You can work for multiple H-1B employers simultaneously, as long as each files a separate petition.

Extensions Beyond 6 Years

The standard maximum H-1B stay is **6 years**. However, extensions beyond 6 years are available under AC21:

**Section 106(a):** 1-year extensions if:

• A PERM labor certification or EB-1, EB-2, or EB-3 I-140 petition has been filed **at least 365 days** before the 6-year H-1B limit.

• The green card process has not been adjudicated due to processing delays.

• Renewable in 1-year increments until the underlying case is decided.

**Section 104(c):** 3-year extensions if:

• The I-140 has been **approved**, AND

• An immigrant visa is **not immediately available** because of per-country limits (priority date is not current).

• Renewable in 3-year increments until a visa number becomes available.

**Recapture of Time:** Time spent outside the U.S. during your H-1B validity can be "recaptured" and added to your 6-year limit.

Spouse & Dependents (H-4)

Spouses and unmarried children under 21 of H-1B holders are eligible for **H-4 dependent status**.

**H-4 EAD (Work Authorization):** H-4 spouses can apply for an EAD if the H-1B principal beneficiary:

• Has an **approved Form I-140** (immigrant petition), OR

• Has been granted H-1B status beyond the 6-year limit under AC21 sections 104(c) or 106(a).

**Important notes:**

• H-4 holders can study in the U.S. at any level.

• H-4 children are **not** eligible for work authorization.

• If the H-1B holder's status ends, H-4 status also terminates.

Regulatory Citations and Legal Basis

INA — Section 101(a)(15)(H)(i)(b)

An alien who is coming temporarily to the United States to perform services... in a specialty occupation.

8 CFR — Section 214.2(h)(4)

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge.

INA — Section 212(n)

No alien may be admitted or provided status as an [H-1B] nonimmigrant... unless the employer has filed with the Secretary of Labor an application (Labor Condition Application).

8 CFR — Section 214.2(h)(13)(iii)(A)

Portability: An alien in valid H-1B status who is the beneficiary of a new H-1B petition may commence employment with the new petitioner after the petition is filed.

Common Questions

How long can I stay on an H-1B?

Initially up to 3 years, extendable to a maximum of 6 years. Extensions beyond 6 years are possible if you have a pending green card application that has been filed for at least 365 days (1-year increments) or an approved I-140 with an unavailable visa number (3-year increments).

Can I change employers on an H-1B?

Yes, the H-1B has a 'portability' provision under AC21. You can begin working for a new employer as soon as the new H-1B petition is filed — you do not need to wait for approval. The new employer's petition is not subject to the cap if you were previously counted.

What happens if my H-1B is denied or I lose my job?

If your employment is terminated, you have a 60-day grace period (or until the end of your authorized validity, whichever is shorter) to find a new employer to file an H-1B petition, change status, or depart the U.S.

Can I start my own business on an H-1B?

Technically possible but very difficult. You can only work for your H-1B sponsoring employer. Self-employment is generally not permitted because the employer-employee relationship is hard to establish when you control the company.

What is the difference between H-1B and H-1B1?

H-1B1 is a separate category reserved for nationals of Chile and Singapore under free trade agreements. It has a separate quota (6,800 visas), a slightly simpler process, and does not support dual intent like the standard H-1B.

Can my spouse work in the U.S.?

H-4 spouses can apply for an EAD (work permit) if the H-1B holder has an approved I-140 petition or has been granted H-1B extensions beyond 6 years under AC21. Without meeting these criteria, H-4 spouses cannot work.

Official Resources

• USCIS H-1B Overview
• Department of Labor - LCA Info
• USCIS H-1B Registration Tool
• DOL Foreign Labor Certification - Prevailing Wages