H-1B Visas for Specialty Occupations
The H-1B lets a U.S. employer hire a foreign professional for a role that genuinely requires a degree. The rules are technical, the annual cap is oversubscribed, and most refusals come down to how the job and the candidate were documented. We handle H-1B petitions for employers and for the people they are hiring.
What the H-1B visa is
The H-1B is a temporary work visa that lets a U.S. employer employ a foreign national in a “specialty occupation” — a role that normally requires at least a bachelor’s degree in a specific field. It is employer-sponsored, which means the job, not the person, is the starting point. You cannot file an H-1B for yourself in the ordinary case.
An H-1B is granted in increments of up to three years, with a general maximum of six years. It is a dual-intent visa, so unlike most temporary categories, pursuing permanent residence at the same time does not by itself undermine the petition.
The job has to require the degree
The single most common reason an H-1B is questioned or refused is that the role, as described, does not clearly require a specific degree. A job title alone will not carry the petition. How the duties are written, and what evidence supports them, does most of the work.
Who qualifies
Both sides of the relationship have to meet requirements. The employer has to establish the position; the worker has to establish they are qualified to fill it.
A specialty occupation
The role must normally require a bachelor’s degree or higher in a specific specialty. Roles where any degree will do, or where no degree is standard in the industry, are the hardest to sustain.
A qualified worker
The employee needs the relevant degree, an equivalent foreign degree, or a combination of education and progressive experience that a credential evaluation can equate to one.
An employer-employee relationship
The employer must have the right to control the work. Third-party placement and staffing arrangements draw closer scrutiny and need contracts and itineraries to back them up.
The required wage
The employer must pay at least the higher of the prevailing wage for that role and location, or the actual wage paid to comparable employees.
A licence, where one is needed
If the occupation requires a state licence — engineering, healthcare, teaching in some states — the licensing position has to be addressed up front.
A real, specific job
Speculative employment does not hold up. USCIS looks for identifiable work that exists for the period requested.
The annual cap and the registration lottery
Congress limits new H-1B visas each fiscal year. The regular cap is 65,000, with a further 20,000 reserved for people holding a U.S. master’s degree or higher. Demand has exceeded supply for years, so USCIS runs an electronic registration and selects from it at random.
| Stage | What happens |
|---|---|
| Registration | The employer registers the candidate electronically during a short window and pays a registration fee. Only basic details are required at this point. |
| Selection | If registrations exceed the cap, USCIS selects at random. Selection is not approval — it only earns the right to file. |
| Petition | Selected registrations can file the full petition, with the labor condition application, evidence of the role and the candidate’s credentials. |
| Decision | USCIS approves, issues a request for evidence, or denies. Approved cap cases generally start work at the beginning of the fiscal year in October. |
Cap-exempt employers are a real alternative
Universities and their affiliated non-profits, non-profit research organisations and government research organisations are not subject to the cap. They can file at any time of year, with no lottery. If a candidate is not selected, a cap-exempt employer is often the most realistic route — and concurrent employment is sometimes possible.
Prevailing wage and the labor condition application
Before the petition goes to USCIS, the employer files a labor condition application with the Department of Labor. In it the employer attests that it will pay at least the required wage, that the role will not adversely affect conditions for existing workers, that there is no strike or lockout, and that notice has been given in the workplace.
These attestations are enforceable. The Department of Labor can investigate, and the obligation to pay the required wage generally begins once the worker enters employment — benching an employee without pay is a recognised violation. Employers should treat the wage obligation as a real commitment, not a formality.
What it costs and how long it takes
Government filing fees are set by regulation and change periodically, and several of them depend on the size of the employer and whether the petition is an initial filing or an extension. Premium processing is optional and buys a faster agency response, not a better outcome. We give you a written breakdown of current fees before anything is filed.
Timing is the harder constraint. Cap-subject cases run on a fixed annual calendar, so missing the registration window means waiting a year. Cap-exempt and extension filings can be made at any time, and processing times vary by service center.
Who pays matters
Certain H-1B costs are legally the employer’s to bear, and cannot be passed to the employee or recovered from wages. Arrangements that shift those costs are a common source of Department of Labor findings. If you have been asked to pay your own petition costs, it is worth having the arrangement reviewed.
Changing employers and extending status
An approved H-1B is tied to the employer who filed it, but it is portable. Once a new employer files a non-frivolous petition on your behalf and it is properly received, you can generally begin working for them without waiting for approval. That portability is valuable and easy to get wrong — the timing of the filing relative to your current status is what matters.
The general six-year limit can be extended in two situations that come up often:
- One-year extensions where a labor certification or immigrant petition was filed at least 365 days before the six years run out.
- Three-year extensions where an immigrant petition is approved but a visa number is not yet available because of per-country backlogs.
Time spent outside the United States can also be recaptured, which sometimes buys more runway than people expect.
Spouses and children
Spouses and unmarried children under 21 can hold H-4 status for the same period as the principal. H-4 spouses may apply for work authorisation in defined circumstances, most commonly where the H-1B holder has an approved immigrant petition. Children in H-4 status can study, but ageing out at 21 is a real planning issue for families who have been waiting in a backlog.
Not sure the role qualifies?
That is the question worth answering before anyone spends money on a filing. We will look at the job description, the degree requirement and the candidate’s background and tell you what we actually think.
Frequently asked questions
Can I file an H-1B for myself?
Not in the ordinary case. The H-1B requires an employer to petition for you. Founder-owned companies can sometimes sponsor, but only where the company can show genuine control over the employee — typically through a board or investors who can hire and fire. These cases need careful structuring and are examined closely.
What happens if I am not selected in the lottery?
You can be registered again the following year, and there are alternatives worth assessing now rather than later: cap-exempt employers, the O-1 for people with strong records, the L-1 if there is a related company abroad, or country-specific options such as the TN for Canadians and Mexicans and the E-3 for Australians.
Does an RFE mean my case is going to be denied?
No. A request for evidence means the officer wants more support for a specific point — very often that the role is a specialty occupation, or that the degree matches the duties. A well-built response resolves many of them. What matters is answering the actual question asked, with evidence rather than argument.
Can I start a new job as soon as the new employer files?
Usually yes, under H-1B portability, provided you were in valid status and the new petition is non-frivolous and properly filed. The safe answer depends on your specific dates, so confirm before you resign anything.
What happens if I am laid off?
There is a discretionary grace period, and options include having a new employer file, changing to another status, or in some cases a pending adjustment of status. The window is short, so get advice quickly rather than waiting to see what happens.
Does holding an H-1B help me get a green card?
It does not grant one, but the H-1B is dual intent, so you can pursue permanent residence while holding it — something most temporary visas do not allow. Many employment-based green card cases begin while the employee is in H-1B status.
Do you represent employers, employees, or both?
Both. In an H-1B the employer is the petitioner, so we are usually engaged by the company, but we are used to working with the employee as well and making sure they understand what is being filed and what their obligations are.
The information on this page is general legal information about how H-1B petitions work. It is not legal advice and does not create an attorney-client relationship. Fees, filing windows and agency policy change frequently, and outcomes depend on the specific facts of each case. Past results do not guarantee or predict a similar outcome in any future matter. Please speak with a licensed attorney about your own situation.
Planning an H-1B filing? Let's talk early.
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