H-1B Visa Guide
Date of Information: 09/26/2025
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What is the H-1B?
The H-1B lets U.S. employers temporarily hire professionals in a specialty occupation—work that ordinarily requires at least a bachelor’s degree in a specific field and the application of specialized knowledge. Most new H-1Bs are subject to an annual cap with a lottery-style selection during registration.
The Process in a Nutshell:
For Employers
Define the role and degree field(s); confirm specialty-occupation fit.
Set prevailing wage & file the LCA with DOL.
Register the beneficiary during the cap window (if cap-subject).
File Form I-129 with supporting evidence; consider premium processing.
If approved: change of status in the U.S. or consular visa issuance abroad.
For Workers
Match your degree/experience to the offered role.
Confirm employer sponsorship and wage level.
Track registration and petition windows.
Plan for travel/consular stamping if needed.
Know portability, grace periods, and H-4 options for family.
The Law, in Plain English
Specialty Occupation
To qualify as a specialty occupation, an H-1B petition can meet any of four criteria:
The job normally requires a bachelor’s degree.
The degree requirement is common in the industry, or the role is so complex it demands one.
The employer normally requires a degree for the position.
The duties are so specialized and complex that they usually require a degree.
USCIS looks at the nature of the duties, industry standards, the employer’s past hiring, and whether the degree is normally required for this role—not just at the company. Courts have upheld denials where job descriptions were vague or too generic, like in Taylor Made Software v. Cuccinelli, where a computer systems analyst role was rejected because the employer’s evidence wasn’t detailed enough. By contrast, courts have reversed USCIS when it applied an overly narrow standard, such as in Raj & Co. v. USCIS, where equivalent education and experience were sufficient to show that a market research analyst position was a specialty occupation. In Royal Siam Corp. v. Chertoff, however, a restaurant manager role was found not to qualify because industry standards didn’t normally require a degree.
Cap & Lottery
Most new H-1Bs face a 65,000 cap, plus 20,000 for U.S. advanced degree holders. Selection is now done through a beneficiary-centric registration system (one entry per person, regardless of sponsors) to prevent duplicate filings. Courts have upheld USCIS’s authority to require anti-collusion attestations in the lottery, as in Manney v. DHS, where noncitizens challenged the validity of those requirements but the court sided with USCIS.
Wages & LCA
Employers must pay at least the prevailing wage and post a Labor Condition Application (LCA) for the worksite(s). The Department of Labor enforces this process and applies a four-tier wage system unique to H-1B. Courts have treated this system as binding: for example, in Louisiana Forestry Ass’n v. Secretary of Labor, the court confirmed that the four-tier wage method applies specifically to H-1Bs and not to other visa categories.
Employer–Employee
There must be a genuine right to control the work (hire, pay, fire, supervise). Third-party placements require itineraries and end-client documentation. If an H-1B worker is retaliated against for reporting wage or LCA violations, USCIS may excuse lapses in status, treating them as “extraordinary circumstances.” Courts have supported this interpretation, recognizing that workers should not lose lawful status solely because of employer retaliation.
Portability & Extensions
Cap-subject H-1B holders can change employers once a new petition is filed, without waiting for approval. Extensions beyond six years may be possible under AC21 if certain green-card steps are in place. Timely filed extensions automatically extend the authorized stay while pending. Dependents (H-4) must usually file separately on Form I-539. Courts have also enforced USCIS precedent requiring new petitions when H-1B workers move to new worksites; for example, in ITServe Alliance v. DHS, the court upheld the agency’s rule that each geographic change triggers a new petition to ensure compliance with LCA requirements.
Family (H-4)
Spouses and children may accompany the H-1B worker as H-4 dependents. Certain H-4 spouses can apply for employment authorization (EAD) once the H-1B principal has reached key steps in the green-card process.
The Law, in Attorney English
Statutory Authority
Immigration and Nationality Act (INA) §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b) – Defines the H-1B nonimmigrant category.
INA §214(g), 8 U.S.C. §1184(g) – Establishes the annual numerical cap (65,000 + 20,000 advanced degree exemption).
INA §212(n), 8 U.S.C. §1182(n) – Labor Condition Application (LCA) requirements, including prevailing wage and posting.
American Competitiveness in the Twenty-First Century Act (AC21), Pub. L. 106-313 – Provides for H-1B portability and extensions beyond six years.
Regulatory Authority (USCIS)
8 C.F.R. §214.2(h) – Comprehensive H classification regulations, including definitions, petition procedures, specialty occupation criteria, amendments, extensions, and employer–employee relationships.
8 C.F.R. §103.7 – USCIS fee regulations (including premium processing).
Regulatory Authority (DOL)
20 C.F.R. Part 655, Subparts H & I – Department of Labor regulations governing Labor Condition Applications and enforcement.
20 C.F.R. Part 656 – Rules on labor certifications, occasionally relevant in portability/green-card context.
Regulatory Authority (DHS/CBP)
8 C.F.R. §214.1(l) – Period of admission, grace periods, and maintenance of status (applies to H-1Bs among other nonimmigrants).
Dependent Spouses and Children (H-4)
INA §101(a)(15)(H) and 8 C.F.R. §214.2(h)(9)(iv) – Authorize H-4 admission.
8 C.F.R. §214.2(h)(9)(iv) & 8 C.F.R. §274a.12(c)(26) – Allow certain H-4 spouses to obtain employment authorization (EAD).
Key Judicial Interpretations of H-1B Statutes and Regulations
Specialty Occupation Standard
A job must require a bachelor’s degree or equivalent in a specific specialty, shown through industry standards or the complexity of duties. Courts have upheld USCIS denials where employers gave vague duty descriptions, used residential addresses as worksites, or failed to show that a degree was normally required in the industry. See e.g. Fast Gear Distributing v. Rodriguez, 116 F. Supp. 3d 839 (E.D. Mich. 2015)).
Courts reversed USCIS when it narrowed “specialty occupation” too much, for example, insisting on a single tailored degree program when equivalent education and coursework sufficed. Market research analyst and health care manager roles have been recognized as specialty occupations when the duties and degree nexus were established (Raj & Co. v. USCIS, 85 F. Supp. 3d 1241 (W.D. Wash. 2015); Chung Song Ja Corp. v. USCIS, 96 F. Supp. 3d 1191 (W.D. Wash. 2015)).
Positions like restaurant managers have been rejected where the Occupational Outlook Handbook shows a wide variety of backgrounds suffice (Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir. 2007)).
Education & Experience Equivalency
Courts have recognized that specialty occupation requirements may be met through a combination of education, training, and experience, not just a degree in a single field (Tapis Int’l v. INS, 94 F. Supp. 2d 172 (D. Mass. 2000)).
Fee Statutes & Chevron Deference
Statutes increasing visa fees apply to petitions for change of status and extensions, not just initial admissions; courts defer to USCIS’s reasonable interpretation (ITServe Alliance v. United States, 161 Fed. Cl. 276 (2022), aff’d 122 F.4th 1364 (Fed. Cir. 2024)).
Lottery & Multiple Filings
USCIS can require attestations in the H-1B lottery to prevent collusion and “gaming the system.” Courts have upheld the attestation requirement as consistent with existing regulations and an interpretive rule not requiring notice-and-comment (LeadIC Design USA LLC v. USCIS, N.D. Cal. 2025).
Agency Discretion & Limits
Courts review USCIS’s factual findings under the APA’s “arbitrary and capricious” standard. Denials are upheld where the employer fails to prove the nexus between duties and degree, but overturned where USCIS imposes requirements narrower than the regulation allows.
Research Tip: Practitioners should begin with the INA text in 8 U.S.C., then cross-reference USCIS regulations at 8 C.F.R. §214.2(h) and DOL regulations at 20 C.F.R. Part 655. AC21 portability and extension provisions are codified in statute but interpreted heavily through USCIS memoranda and the Policy Manual.
Recent Updates & Policy Notes
Beneficiary-centric selection (effective March 4, 2024): Registration ties to each person, curbing duplicate entries.
USCIS fee schedule (effective April 2024): New fees and forms; budget accordingly.
Late-2025 fee development: A one-time $100,000 fee for new H-1B petitions has been announced by the U.S. government; reports indicate it does not apply to existing holders. Details remain fluid; monitor agency guidance.
Brief History of the H-1B
Created by the Immigration Act of 1990, the H-1B has evolved through cap adjustments, ACWIA/AC21 reforms, fraud-prevention fees, electronic registration, and integrity rules aimed at duplicate entries and third-party placements.
The H-1B Calendar: Why Advance Planning Is Essential
Why this matters: The H-1B process runs on a fixed yearly cycle. Missing a single step means waiting until the next fiscal year. Employers must plan ahead.
January – February (Preparation Phase)
Identify potential H-1B candidates early (especially F-1 students on OPT whose work authorization may expire).
Define job duties and confirm they meet the “specialty occupation” standard.
Gather supporting documentation: diplomas, evaluations, resumes, licenses, and prior immigration history.
Start preparing the Labor Condition Application (LCA) – it must be filed and certified with the Department of Labor before filing the I-129.
LCAs typically take 7 days to process once filed online, but delays are common—file at least 2–3 weeks before you plan to submit the I-129.
March (USCIS Registration Window)
USCIS opens the online lottery registration (usually March 1–20). Submit electronic registrations for each candidate.
Pay the $10 registration fee per beneficiary.
Wait for USCIS lottery selection results (announced late March).
April – June (Filing Phase)
If selected in the lottery, file the full H-1B petition package (Form I-129 + H supplement + H-1B data collection form + certified LCA + supporting evidence).
April 1: Earliest date to file Form I-129 for cap-subject petitions.
Petitions must be received by USCIS within the filing window (usually 90 days).
Double-check fee checks, signatures, and required supplements to avoid rejection.
July – September (Follow-Up Phase)
Respond quickly to any USCIS Requests for Evidence (RFEs).
Track processing times; premium processing (Form I-907) can deliver a decision in 15 calendar days.
Prepare the employee for consular processing or change of status, depending on their situation.
October 1 (Start of New Fiscal Year)
The earliest lawful start date for approved H-1B employment.
Ensure onboarding and compliance systems are ready (public access file, LCA posting, wage recordkeeping).
Key Point: Employers cannot simply “decide in March.” The LCA must be certified before the I-129 can be filed, and registrations must be submitted during a brief March window. Advance planning—often beginning in January—is the only way to secure a chance in the H-1B lottery.
Tips for Completing Form I-129 (H-1B)
Filing Form I-129 is one of the most detail-sensitive parts of the H-1B process. Even minor mistakes can cause costly rejections or delays. Here are consolidated tips drawn from USCIS official resources and practitioner strategy guides.
1. Start With the Most Current Version
Always download the latest Form I-129 and instructions from the USCIS website. Using outdated editions or missing new requirements is one of the most common causes of rejection.
Double-check the edition date on the bottom of the form before filing.
2. Budget and Pay the Right Fees
Fees include: the base I-129 fee, ACWIA training fee, fraud-prevention fee, asylum program fee, and in some cases the Public Law 114-113 fee.
Use separate checks or money orders for each fee; combined payments can result in rejection.
Employers—not employees—must pay most mandatory fees. Premium processing (Form I-907) can be added if faster adjudication is critical.
3. Secure the Certified LCA First
For H-1Bs, an approved Labor Condition Application (LCA) from the Department of Labor is required before you can submit Form I-129.
Ensure the LCA lists correct wage levels, work locations, and duties. Inaccuracies can trigger RFEs or denials.
4. Provide Detailed Job Descriptions
USCIS scrutinizes whether the role truly qualifies as a specialty occupation. Vague or generic descriptions risk denial.
Spell out job duties, minimum qualifications, and why a degree in a specific specialty is required. Support with industry data, employer history, or expert affidavits.
5. Gather and Organize All Supporting Evidence
Include employment offer letters, the certified LCA, educational credentials, resumes, professional licenses, and proof of prior work experience.
For third-party placements, include client letters and an itinerary of assignments.
Follow USCIS’s recommended packet order: I-129 form on top, then LCA, then supporting evidence, and fee checks at the bottom.
6. Watch the Timing
Cap-subject petitions can only be filed after selection in March registration, with a filing window opening April 1.
Petitions may not be filed more than six months before the requested start date.
Plan ahead: missing the narrow filing window can push your case back a full year.
7. Complete the Export Control Certification
Part 6 of the I-129 asks about export-controlled technology. Complete this section carefully; it is required even if no license is needed.
8. Signatures and Submission
Each section requiring a signature must be signed in ink or with an acceptable scanned signature. Stamped or typewritten signatures are not valid.
Submit only clear copies unless USCIS specifically requests originals.
9. Track the Case
Use the USCIS online case status tool with the receipt number. Delays or errors can often be caught early.
Many law firms now use case-tracking software to automate updates and ensure no deadlines are missed.
10. Keep Clients and Teams Educated
Employers should be briefed on what documents they must provide, realistic processing times, and what to expect at each stage. Clear communication avoids panic and errors later.
Frequently Asked Questions (FAQ)
1. What makes a job qualify as a specialty occupation?
A: There are four accepted tests:
The job normally requires a bachelor’s degree;
The degree requirement is common in the industry or the job is so complex it demands one;
The employer typically requires a degree for that job; or
The duties are so specialized they require a degree.
USCIS looks not just at the employer, but at industry norms and the nature of the work. Courts have rejected petitions when descriptions were vague (e.g. Taylor Made Software) and approved them when education/experience equivalency was shown (Raj & Co.).
2. When can I start working under an approved H-1B?
A: For cap-subject H-1Bs, the earliest start date is October 1 of the fiscal year for which the petition was filed. If you’re already in the U.S. and changing status, you may begin employment when the petition is approved (provided status is maintained).
3. Can I change employers while on H-1B?
A: Yes. Under the portability rules, an H-1B holder can begin work with a new employer when the new employer’s petition is filed (not necessarily approved). However, timing, status maintenance, and prior history matter. Also, if you move worksites, a new (or amended) petition may be required for LCA compliance.
4. What happens if USCIS issues an RFE (Request for Evidence)?
A: You must respond timely, usually within the deadline given. Use the RFE to provide clarifications, additional documentation, or arguments matching USCIS’s concerns. A strong, well-organized response often fixes omissions.
5. Can H-4 spouses work?
A: In certain cases, yes. If the H-1B principal has reached certain milestones in the green-card process, the H-4 spouse can apply for an Employment Authorization Document (EAD). The rules are codified in 8 C.F.R. §274a.12(c)(26) and related USCIS policy.
6. What if I miss the March registration window or the filing window?
A: If you miss the registration or filing window, your petition becomes ineligible for that fiscal year’s cap pool. You must wait until the next cycle. That’s why advance planning — as early as January or February — is essential.
7. What fees must the employer pay?
A: The employer must pay the mandatory filing fees (base I-129, ACWIA training, fraud prevention, etc.). Optional fees, like premium processing, can sometimes be paid by either party (depending on agreement). The employee cannot be forced to pay core petitioning fees.
8. Does a degree from a foreign university count?
A: Yes — but you’ll need equivalency evaluation, transcripts, and comparison to U.S. academic standards. You should include an expert evaluation or credential report to support the equivalence.
9. How long does USCIS take to approve an H-1B?
A: It depends. Regular processing can take several months. Premium processing (Form I-907) shortens the timeline to about 15 calendar days (when available). Note that RFEs will delay final adjudication.
10. Can I file more than one H-1B petition for a candidate?
A: No. Under the current beneficiary-centric system, only one registration per person is allowed. Duplicate filings can disqualify all registrations. USCIS also requires anti-collusion attestations to prevent gaming the system.
Need Help with an H-1B Strategy?
Every company and every candidate has unique circumstances. In a consultation, we’ll review your goals, outline the H-1B timeline, and build a clear plan to maximize your chances of success.
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
