Guide to the H-1B Visa

TL;DR

• The H-1B is a nonimmigrant work visa for foreign nationals employed in specialty occupations that require at least a U.S. bachelor's degree (or equivalent) in a specific field as the minimum entry requirement.

• Most H-1B petitions are subject to an annual cap of 85,000: 65,000 under the regular cap and 20,000 reserved for beneficiaries with a qualifying U.S. master's degree or higher.

• Demand consistently exceeds supply, requiring a lottery. Effective February 27, 2026, the lottery has been replaced with a wage-weighted selection system: positions offered at higher DOL prevailing wage levels receive proportionally greater selection weight.

• Before filing, the employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor, attesting to prevailing wage compliance and worker protection obligations.

• A $100,000 fee applies to new H-1B petitions filed on or after September 21, 2025 for beneficiaries outside the United States who do not hold a currently valid H-1B visa. Extensions, amendments, and change-of-status filings inside the U.S. are not subject to this fee.

• The initial period of stay is up to three years, extendable to a total of six years. Extensions beyond six years are available for those who have reached qualifying milestones in the green card process.

• The H-1B is dual intent: pursuing permanent residence does not jeopardize H-1B status.

• Spouses and children under 21 qualify for H-4 status. H-4 EAD work authorization is available to H-4 holders whose H-1B spouse has an approved I-140 or is past the six-year maximum based on a long-pending PERM.

What Is the H-1B Visa?

The H-1B is a nonimmigrant employer-sponsored work visa that allows U.S. companies and other employers to temporarily employ foreign professionals in specialty occupations. 

Per USCIS, a specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor's degree or higher in a directly related specific specialty as the minimum for entry into the occupation.

The H-1B is the most widely used employment-based work visa in the United States and serves as the primary pathway for employers hiring skilled foreign professionals in technology, engineering, finance, life sciences, architecture, accounting, and other degree-intensive fields.

The visa is employer-sponsored. The employer, not the employee, files the petition. The employee is the beneficiary. The employer bears legal responsibility for prevailing wage compliance, working condition attestations, and the accuracy of the petition.

Specialty Occupation: The Core Eligibility Standard

The most fundamental requirement is that the position itself qualifies as a specialty occupation. A role meets this standard if it satisfies at least one of four statutory criteria:

• A bachelor's degree or higher in a specific specialty is normally the minimum requirement for entry into the position

• The degree requirement is common to the industry in parallel positions among similar organizations, or the position is so complex or unique that it can only be performed by someone with a degree

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

• 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 beneficiary must also hold the required degree. A U.S. bachelor's degree in the relevant specialty, a foreign equivalent evaluated by a credential evaluation agency, or a combination of education and progressive work experience equivalent to the degree may all satisfy this requirement.

USCIS has tightened specialty occupation scrutiny in recent years. Common RFE triggers include: 

• Positions described too broadly to establish specialty requirements

• Roles where the employer's own job postings list a degree as preferred rather than required

• Cases where the beneficiary's degree does not directly relate to the specialty required for the position

The Annual Cap and the Lottery

Cap Structure

The H-1B program is subject to an annual numerical limit set by Congress. Each fiscal year (October 1 through September 30), USCIS may approve up to:

• 65,000 petitions under the regular cap for all eligible beneficiaries

• 20,000 additional petitions under the advanced degree exemption (the "master's cap") for beneficiaries holding a qualifying U.S. master's degree or higher from an accredited U.S. institution

Beneficiaries with a qualifying U.S. master's degree are first entered into the master's cap pool. If not selected there, the same registration automatically carries over into the regular cap. This two-stage process gives master's degree holders a meaningful statistical advantage over those in the regular cap only.

Cap-Exempt Employers

Certain employers and employment situations are not subject to the annual cap and may file H-1B petitions at any time of year, without lottery participation:

• Institutions of higher education

• Nonprofit entities related to or affiliated with an institution of higher education

• Nonprofit research organizations

• Government research organizations

• Petitions for beneficiaries who have previously been counted against the cap and still have H-1B time remaining

Cap-exempt status is determined by the employer, not the position. A software engineer working at a university research lab is cap-exempt; the same engineer at a for-profit tech company is cap-subject.

The Wage-Weighted Selection System (Effective FY2027)

For the FY2027 cap season and forward, the traditional random lottery has been replaced by a wage-weighted selection system. 

The DHS final rule, published December 29, 2025 and effective February 27, 2026, assigns each registration a number of weighted entries in the selection pool based on the DOL OEWS (Occupational Employment and Wage Statistics) prevailing wage level corresponding to the offered wage:

Under this system, a position offered at a Level 4 wage has four times the selection probability of a Level 1 position. Employers must identify the correct SOC code, work location, and corresponding wage level at the time of registration. 

USCIS retains the right to deny or revoke petitions where the wage level on the petition does not match the registration, or where there is evidence that the employer artificially inflated the wage level to improve selection odds.

The beneficiary-centric registration system, introduced for FY2025, remains in place: each unique beneficiary is entered into the pool once, regardless of how many employers register them. Multiple employer registrations for the same individual do not multiply their selection chances; the lowest wage level among all registrations for that beneficiary is used.

The Labor Condition Application (LCA)

Before filing the H-1B petition with USCIS, the employer must obtain a certified Labor Condition Application from the U.S. Department of Labor. The LCA is filed electronically through the DOL FLAG system using Form ETA-9035/9035E.

What the LCA Requires

By submitting the LCA, the employer attests under penalty of perjury to four obligations:

• Prevailing wage compliance. The employer will pay the H-1B worker the greater of: (a) the actual wage paid to all other employees with similar experience and qualifications for the specific employment in question, or (b) the prevailing wage for the occupational classification in the geographic area of intended employment. The prevailing wage is determined by the DOL's OEWS data, and must reflect the correct occupation and location.

• Working conditions. The employer will provide working conditions for the H-1B worker that will not adversely affect the working conditions of similarly employed U.S. workers.

• No strike or lockout. At the time the LCA is filed, there is no strike, lockout, or work stoppage in progress in the occupational classification at the place of employment.

• Notice. The employer has provided notice of the LCA filing either to the collective bargaining representative (if applicable) or by posting notice at the place of employment.

LCA Processing and Validity

DOL certifies LCAs on a largely pro forma basis, typically within seven business days. The LCA is valid for the period of authorized employment certified on the form. The employer's wage obligations under the LCA attach throughout the entire period any H-1B worker is employed under that LCA.

A separate LCA is required for each worksite location. If an H-1B worker will perform services at multiple locations, the employer must ensure that appropriate LCA coverage exists for each site.

Validity, Extensions, and the Six-Year Limit

Initial Period and Extensions

An H-1B worker may generally be admitted for an initial period of up to three years. This initial period may be extended for an additional three years, for a standard maximum total of six years. Extensions are filed using the same Form I-129 process as the initial petition.

Staying Beyond Six Years: AC21 Extensions

The American Competitiveness in the Twenty-First Century Act (AC21) allows H-1B holders to extend beyond the six-year maximum under two provisions:

• 365-day PERM rule: If a PERM labor certification application has been pending for 365 days or more, the H-1B holder may receive one-year extensions indefinitely while the green card process continues.

• Approved I-140 rule: If an I-140 immigrant petition has been approved but a visa number is not yet available due to a priority date backlog, the H-1B holder may receive three-year extensions indefinitely while waiting for the visa number.

Both provisions require that the I-140 or PERM was filed at least 365 days before the six-year cap date, and that the H-1B holder otherwise remains eligible.

Employer Portability Under AC21

Under AC21, H-1B portability allows a beneficiary to change employers as soon as the new employer's petition is properly filed with USCIS, provided the beneficiary was previously counted against the cap and still has remaining H-1B time. 

The new employer files a new Form I-129, and the beneficiary may begin work for the new employer upon receipt of the filing (not upon approval). This is one of the H-1B's most important practical features for mid-career professionals navigating employer changes.

The $100,000 Proclamation Fee

Effective September 21, 2025, a Presidential Proclamation requires an additional $100,000 payment for certain new H-1B petitions. Understanding precisely who this applies to is critical for employer planning:

• Applies to: New H-1B petitions filed on or after September 21, 2025 for beneficiaries who are outside the United States and do not hold a currently valid H-1B visa, including petitions requesting consular processing or port of entry notification.

• Does not apply to: Extensions and amendments for H-1B workers already in the United States; change-of-status petitions approved inside the United States; petitions for beneficiaries who already hold a valid H-1B visa; petitions filed before September 21, 2025.

Travel risk: If a beneficiary whose change of status was approved subsequently departs the United States and has never held an H-1B visa, the $100,000 fee must be paid before the visa stamp is issued at a U.S. consulate.

The Proclamation is set to expire September 21, 2026 unless extended. Multiple legal challenges were pending as of early 2026. Employers should verify current status before making hiring decisions that depend on consular processing.

H-1B Filing Fees

All fees below are based on the April 1, 2024 USCIS fee schedule and the September 2025 Proclamation. Always verify current fees at uscis.gov/g-1055 before filing.

Employers with 25 or fewer full-time equivalent employees qualify for small employer rates. Institutions of higher education, related nonprofits, nonprofit research organizations, and government research organizations are exempt from the ACWIA Training Fee.

The H-1B Application Process

For Cap-Subject Petitions

• Step 1: Register in March. The USCIS registration window for each fiscal year's cap opens in early March and runs for approximately two weeks. For FY2027, the window ran March 4 to March 19, 2026. The employer submits a registration for each intended beneficiary through a USCIS online account, paying the $215 registration fee per beneficiary.

• Step 2: Lottery selection. USCIS conducts the weighted selection in late March. Selected employers receive a Registration Selection Notice for each selected beneficiary.

• Step 3: File the I-129 petition. Selected employers may file cap-subject Form I-129 petitions starting April 1 of that year. The petition must indicate a start date of October 1 or later of the relevant fiscal year, and may not be filed more than six months before the requested start date. Petitions must be accompanied by a certified LCA, the H Classification Supplement, and all required supporting documentation.

• Step 4: Adjudication. USCIS reviews the petition. Standard processing times vary by service center. Premium processing via Form I-907 guarantees a decision within 15 business days at a cost of $2,965.

• Step 5: Visa stamp or change of status. If the beneficiary is in the United States in valid nonimmigrant status, the employer can request a change of status on the I-129. If the beneficiary is abroad, they apply for the H-1B visa stamp at a U.S. embassy or consulate after petition approval.

For Cap-Exempt Petitions

Cap-exempt employers may file Form I-129 at any time of year, without registration or lottery participation. There is no April 1 start date requirement for cap-exempt petitions; employment may begin as soon as the petition is approved (or upon receipt in certain portability situations).

H-1B Impact on Dependents: H-4 Status

Spouses and unmarried children under 21 of H-1B holders are eligible for H-4 dependent status, which allows them to live and study in the United States for the duration of the H-1B holder's authorized stay.

H-4 EAD: H-4 spouses are eligible for work authorization through an Employment Authorization Document if the H-1B holder meets one of two conditions: 

• H-1B holder has an approved I-140 immigrant petition

• Or the H-1B holder is in a period of H-1B extension beyond the standard six years under AC21

The H-4 EAD application is filed using Form I-765 and must be renewed periodically.

H-1B and the Green Card Pathway

The H-1B is dual intent, meaning the holder may simultaneously pursue permanent residence without jeopardizing their nonimmigrant status. This makes the H-1B the most common bridge visa for those working toward an employment-based green card.

Most H-1B holders pursue permanent residence through employer-sponsored EB-2 or EB-3, both of which require PERM labor certification. PERM currently takes well over a year under normal conditions. Given the six-year H-1B limit and the time PERM and I-140 adjudication consume, initiating the green card process early in the H-1B period is critical, particularly for beneficiaries born in India or China where priority date backlogs can extend for a decade or more.

H-1B holders who qualify may also self-petition through EB-1A (extraordinary ability) or EB-2 NIW (national interest waiver), both of which bypass PERM and allow self-petition. These pathways require meeting a higher individual achievement threshold but provide independence from the employer sponsorship that PERM-based green cards require.

Priority date strategy for Indian-born H-1B holders: Filing an I-140 as early as possible in H-1B status, even years before the green card is expected to be approved, establishes the earliest possible priority date. For Indian nationals in EB-2 or EB-3, the difference between a 2020 priority date and a 2025 priority date can represent several additional years of waiting.

Common RFE Triggers

• Specialty occupation: The most frequent RFE category. Common issues include job descriptions that are too generic to establish a specialized degree requirement, positions in fields where USCIS has become more skeptical (such as certain IT consulting roles and business analyst positions), and cases where the beneficiary's degree is in a field that does not clearly align with the job duties.

• Employer-employee relationship. USCIS scrutinizes whether a genuine employment relationship exists, particularly in staffing, consulting, and third-party placement situations. Evidence of the employer's right to supervise, direct, and control the beneficiary's work is required.

• Specialty occupation at third-party worksites. When the H-1B worker will perform services at a client's location, USCIS may request detailed itinerary information, contracts between the H-1B employer and the end client, and evidence of the employer's continued right to control the work.

• Wage level mismatch. Under the wage-weighted selection system, if the wage level on the petition does not match the level indicated on the registration, USCIS may request an explanation or deny the petition.

Frequently Asked Questions

Can I apply for an H-1B without an employer?

No. The H-1B requires a U.S. employer to file the petition on your behalf. Unlike the O-1A or EB-1A, there is no self-petition option. If you change employers, the new employer must file a new I-129 petition before or when you begin working for them.

What happens if I am laid off on H-1B?

H-1B holders who lose their job have a 60-day grace period to find a new employer, file for a change of status, or depart the United States. The grace period does not authorize work; it merely prevents immediate unlawful presence accumulation. 

If a new employer files a properly supported H-1B transfer petition before the grace period ends, the beneficiary may continue working for the new employer once that petition is filed.

Does the $100,000 fee apply to my situation?

The fee applies to new H-1B petitions for beneficiaries who are outside the United States and do not have a currently valid H-1B visa. 

If you are already in the United States on H-1B status and your employer is filing an extension, amendment, or transfer, you are not subject to this fee. If you are changing employers and currently in the United States in H-1B status, you are not subject to this fee. If you are outside the United States and have never held an H-1B visa, the fee applies. Consult an immigration attorney to confirm your specific situation.

How does the wage-weighted lottery affect my chances?

Under the FY2027 system, a position offered at a DOL Level 4 wage has four times the selection probability of a Level 1 position. If your employer can legitimately offer a higher wage that places your compensation at Level 3 or Level 4 for your occupation and location, your selection odds improve substantially. The wage level used for the lottery registration must accurately reflect the offered wage; USCIS will verify this at the petition stage.

Can I work for multiple employers on H-1B?

Yes, but each employer must file a separate concurrent H-1B petition. You may not begin working for a new employer until that employer's petition has been filed and, in some cases, approved. Working for any employer not covered by an approved or pending petition is a violation of H-1B status.

Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. H-1B requirements, fees, and policy are subject to frequent change. Always verify current USCIS and DOL requirements before filing. For guidance specific to your situation, consult a licensed immigration attorney.