H-1B specialty occupation work visa

Wang Law Firm, LLC · David Wang, Managing Attorney

The H-1B is the work visa U.S. employers use most often to hire foreign professionals. It covers "specialty occupations" that require at least a bachelor's degree or equivalent. It's one of the few nonimmigrant visas the law recognizes as "dual intent": while you're on H-1B, your employer can sponsor you for a green card without affecting your H-1B status.

The H-1B's main limit is the cap: most employers' new petitions are subject to the annual cap, so they first go through electronic registration and selection, and can only file after being selected. The H-1B is also tied to the employer: you can only work for the employer that petitioned for you.

Who it suits

• F-1 students who completed a bachelor's, master's or doctorate in the U.S. and are working on OPT;
• Engineers, accountants, analysts, designers, healthcare professionals and others outside the U.S. who have a U.S. employer willing to hire them;
• Researchers and faculty hired by universities, affiliated nonprofits or research institutions (who may not be subject to the cap);
• People who plan to apply for a green card later through their employer via PERM labor certification.

Requirements

1. The position must be a "specialty occupation"

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge, and normally requires at least a bachelor's degree in a specific specialty, or its equivalent, to enter. Examples include software engineering, accounting, architecture, engineering, medicine, law, education and mathematics. The job title isn't decisive; the actual duties are. General positions that only require "any bachelor's degree," or where the degree has no direct connection to the job, are easily challenged.

2. You have the corresponding education

• A U.S. bachelor's degree or higher in a field related to the position; or
• An equivalent foreign degree, generally with an equivalency evaluation from a credential evaluation service; or
• In fields where the position requires a license, the corresponding license; or
• A combination of education and work experience equivalent to a U.S. bachelor's degree in the relevant field. A common calculation is 3 years of specialized work experience for each year of university study, which requires an evaluation from a qualified evaluator and detailed employment verification.

3. The employer obtains a labor condition application (LCA)

Before filing the H-1B petition, the employer must file and obtain certification of a Labor Condition Application (LCA, ETA-9035) from the Department of Labor. In the LCA, the employer promises:

• To pay at least the higher of the actual wage (what the company pays similar employees) and the prevailing wage (the market wage for the position in that area);
• That employing H-1B workers won't adversely affect the working conditions of similarly employed U.S. workers;
• That there is no strike or lockout at the worksite when the LCA is signed;
• That notice has been posted at the worksite, or given to the union.

LCAs are certified by worksite. If the worksite changes materially (for example, a move to a city outside commuting distance), the employer usually needs a new LCA and an amended H-1B petition.

The cap and cap-exempt employers

• Regular cap: 65,000 per fiscal year;
• U.S. master's cap: an additional 20,000 for people with a master's degree or higher from a U.S. institution;
• Some numbers are reserved under trade agreements for nationals of specific countries; unused numbers return to the regular cap.

H-1B petitions from the following employers are not subject to the annual cap (cap-exempt), can be filed year-round and don't require selection:

• Institutions of higher education (universities and colleges);
• Nonprofit entities related to or affiliated with institutions of higher education (such as qualifying university-affiliated hospitals);
• Nonprofit research organizations;
• Governmental research organizations.

In addition, people who have already been approved for a cap-subject H-1B and haven't used up their 6 years generally don't need to go through selection again to change employers or extend.

The process

1. Electronic registration: cap-subject employers submit an electronic registration for each employee during the registration period USCIS opens each year (usually in March), and pay the registration fee.
2. Selection: when registrations exceed the cap, USCIS runs a selection. The selection method has changed in recent years; the specific rules are those USCIS announces for that year.
3. Filing the petition: once selected, the employer obtains the LCA and files the I-129 within the filing window (usually starting April 1). Premium processing is available.
4. Start date: a new cap-subject H-1B can take effect no earlier than October 1, the start of the fiscal year. Those in the U.S. can change to H-1B on that date; those abroad need a visa interview at a U.S. embassy or consulate before entering.

F-1 students on OPT who are selected and file a timely change-of-status petition can usually extend their F-1 status and work authorization through "cap-gap" until the H-1B takes effect. The maximum cap-gap period has changed in recent years; check current USCIS rules. See F-1 and OPT.

Documents you'll usually need

• Employer: basic company information, the certified LCA, the job description, and the employment contract or offer letter;
• Employee: passport, degree certificates and transcripts, a credential equivalency evaluation (if applicable), proof of work experience, and a license (if applicable);
• Employees in the U.S.: proof of current status, such as I-94, I-20 or EAD.

Timing and costs

H-1B involves a registration fee, filing fee, fraud prevention fee, and for some employers a training fee, plus fees added in recent years; amounts and who pays them have changed often. See How to check immigration filing fees and processing times, and rely on the USCIS H-1B page. By law, some fees must be paid by the employer and can't be passed on to the employee.

Duration and extensions

• Each approval is for up to 3 years and can be extended, generally to a total of 6 years;
• Time spent outside the U.S. can, under certain conditions, be "recaptured" toward the 6 years;
• Extensions during a green card case: under the American Competitiveness in the Twenty-first Century Act (AC21), if a PERM labor certification or I-140 was filed at least 365 days earlier, you can extend beyond 6 years in 1-year increments; if the I-140 is approved but you can't file I-485 because of the visa backlog, you can extend in 3-year increments. This is a key tool for applicants facing long backlogs to maintain status.

Changing employers (portability)

If you're already in H-1B status and lawfully in the U.S., once a new employer files an H-1B petition for you, you can generally start working for the new employer as soon as the new petition is filed, without waiting for approval. This assumes you were lawfully admitted and haven't worked in the U.S. without authorization before the filing. If you need to find a new job after leaving one, the regulations give H-1B workers a grace period of up to 60 days (not beyond the end of the original approval).

If an H-1B worker is dismissed, the employer must pay the reasonable cost of return transportation.

Dependents: H-4 and H-4 EAD

Your spouse and unmarried children under 21 can apply for H-4 status and can attend school in the U.S. H-4 spouses generally can't work, but can apply for a work permit (H-4 EAD) if:

• The H-1B principal's I-140 has been approved; or
• The H-1B principal has been granted an extension beyond 6 years under AC21.

The H-4 EAD was created by regulation, and the government has indicated it is considering amending or rescinding it; before filing, check current USCIS rules.

Common mistakes

• A position that isn't a "specialty occupation." A generic job description and no specific degree requirement.
• A degree field that doesn't match the position, without a sufficient explanation of how they're related.
• Paying below the prevailing wage, or not paying an H-1B worker during periods without work ("benching"), which violates the LCA commitments.
• Not amending the petition when the worksite changes.
• Duplicate registrations for the same person by the same employer, or collusion among related companies to register, which can invalidate the registrations.
• The employee paying fees the employer is required to pay.

Compared with similar visas

See O-1, TN and L-1.

Common questions

Related reading

• PERM labor certification and EB-2 / EB-3
• F-1 student visa and OPT
• O-1A / O-1B extraordinary ability work visa
• USCIS: H-1B Specialty Occupations

This article is general information and is not legal advice. Laws and policies can change; rely on the latest official information and on an attorney's advice for your specific situation.