H-1B Visa Lawyers

What Is an H-1B Visa?

The H-1B visa is a nonimmigrant work visa that permits U.S. employers to temporarily employ foreign professionals in specialty occupations. Both the employer and the worker must satisfy precise criteria before an H-1B petition can be approved, and the process involves the Department of Labor, U.S. Citizenship and Immigration Services (USCIS), and, for workers abroad, the Department of State.

Several H-1B rules changed in 2025 and 2026, and others are in litigation or remain in proposed form. We track those matters on our H-1B and H-4 Updates page.

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Basic Requirements

To qualify, a foreign national must meet the educational requirements for, and be offered employment in, a specialty occupation by a U.S. employer. H-1B status is granted in periods of up to three years, generally up to a total of six years. Time spent outside the United States during that period generally may be “recaptured” and added back to the six-year total. A foreign national who has reached the six-year limit generally must remain outside the United States for one year before becoming eligible for a new period of H-1B status, unless he or she qualifies for an extension beyond six years, described below.

H-1B Specialty Occupations

A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge and at least a bachelor’s degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation.

Under the H-1B modernization rule that took effect January 17, 2025, the required degree must be directly related to the duties of the position. A position may still qualify when the employer accepts degrees in more than one field, as long as each field is directly related to the duties. A requirement for a general degree, such as business administration or liberal arts, without further specialization does not qualify. The worker must hold at least a U.S. bachelor’s degree in the required specialty, a foreign equivalent degree, or an equivalent combination of education and progressively responsible work experience, along with any license the position or applicable law requires.

The 2025 rule also allows an entrepreneur who owns a controlling interest in the petitioning company to obtain H-1B status, subject to additional conditions. For such a beneficiary-owner, the initial petition and the first extension are each generally limited to 18 months.

The H-1B Cap and Registration

The number of new H-1B visas available each fiscal year is capped at 65,000, with an additional 20,000 available for foreign nationals who have earned a master’s or higher degree from a U.S. institution of higher education. Institutions of higher education, nonprofit entities related to or affiliated with them, and nonprofit or governmental research organizations, including organizations for which research is a fundamental activity, are exempt from the cap. Nonprofit status alone does not create an exemption. Workers already counted against the cap within the past six years generally are not counted again.

Employers filing cap-subject petitions must first submit an electronic registration for each prospective worker during an annual registration period, usually held in March. A selection permits the employer to file a petition during the filing period stated on the selection notice, which generally begins April 1 for employment starting October 1. A selection does not approve H-1B status or authorize employment.

Beginning with the fiscal year 2027 cap season, USCIS no longer selects registrations purely at random. Under a rule effective February 27, 2026, selection is made by worker (each unique beneficiary), and each worker is entered into the selection pool based on the highest Department of Labor wage level that the offered wage meets or exceeds for the occupation and area of employment: four entries for Level IV, three for Level III, two for Level II, and one for Level I. Registrations at every wage level remain eligible. A worker registered by more than one employer does not receive extra entries; the lowest wage level among those registrations applies, and a position with more than one worksite is placed at the lowest level among those locations. The wage level used for selection may differ from the wage level on the later Labor Condition Application, but the registration information must be accurate and consistent with the petition.

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How the H-1B Filing Process Works

Before filing with USCIS, the employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor. In the LCA, the employer attests that it will pay the H-1B worker at least the required wage, offer benefits on the same basis as U.S. workers, provide notice of the filing, and maintain working conditions that do not adversely affect U.S. workers. The Department of Labor must act on an LCA within seven working days of filing, and in practice it usually takes the full period. The LCA must state the wage the employer will pay the H-1B worker, along with the prevailing wage for the position. The H-1B petition must then include:

• Form I-129, Petition for a Nonimmigrant Worker, with the applicable H-1B supplements;
• The certified Labor Condition Application;
• Evidence supporting the petition, including the worker’s education, the terms of employment, and how the position qualifies as a specialty occupation;
• A valid selected registration, for cap-subject petitions; and
• The required government filing fees.

The employer’s obligations continue for as long as the worker is employed in H-1B status. They are described in detail on our H-1B Employer Compliance page.

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H-1B Government Filing Fees

The following USCIS fees apply as of October 2026. Which fees apply depends on the employer’s size, its nonprofit status, and the type of petition. We update this information regularly, but H-1B fees have changed frequently in recent years. The amounts below are provided for general information only and should not be relied on for a filing. For every case we file, our office calculates the applicable government fees and informs the client of the exact amounts at the time of filing.

• Registration fee (cap-subject cases only): $215 per registration.
• Form I-129 filing fee: $780 if filed by mail or $730 if filed online; $460 (by mail or online) for small employers (25 or fewer full-time equivalent employees) and nonprofit organizations.
• Asylum Program Fee: $600, or $300 for small employers (25 or fewer full-time equivalent employees). Nonprofit organizations do not pay this fee.
• ACWIA training fee: $1,500 for employers with more than 25 full-time equivalent employees, or $750 for employers with 25 or fewer. Institutions of higher education, their related or affiliated nonprofit entities, nonprofit and governmental research organizations, and certain other employers and petitions are exempt.
• Fraud Prevention and Detection Fee: $500 for an initial H-1B petition and for a petition filed by a new employer. It generally is not required for an extension filed by the same employer.
• Public Law 114-113 fee: $4,000 for employers with 50 or more employees in the United States, more than half of whom are in H-1B or L-1 status. It applies to initial, change-of-employer, and extension petitions. An amended petition that does not request an extension of stay is exempt.
• Premium processing (optional): $2,965.

The employer must pay the ACWIA training fee and the Fraud Prevention and Detection Fee, and the worker may not reimburse the ACWIA fee. Other H-1B petition costs, including the attorney fees for preparing the Labor Condition Application and petition, are the employer’s business expenses and may not be deducted from the worker’s pay or repaid by the worker if doing so would reduce the worker’s pay below the required wage. A worker may pay an optional premium processing fee requested solely for his or her personal benefit, subject to the same limit. Current amounts are also listed on the USCIS fee schedule (Form G-1055).

Processing Time and Premium Processing

Regular processing times vary by USCIS service center and change frequently; current estimates are posted on the USCIS processing times page. For an additional fee, an employer may request premium processing, under which USCIS must take action on the petition, by approval, denial, request for evidence, or notice of intent to deny, within 15 business days. If USCIS issues a request for evidence or notice of intent to deny, a new 15-business-day period begins when USCIS receives the response. Premium processing does not guarantee approval, a visa appointment, or admission.

If USCIS issues a Request for Evidence (RFE), the notice will identify the missing or insufficient evidence and the response deadline, which cannot exceed 12 weeks. USCIS does not extend the deadline, and all requested information must be submitted together in a single response. A complete, well-organized response is often the difference between approval and denial.

Changing Employers (H-1B Transfers)

A worker already in H-1B status may change employers when the new employer files its own H-1B petition. Under the H-1B portability provisions, the worker may begin working for the new employer once the new employer properly files a nonfrivolous petition, or on the petition’s requested start date, whichever is later. The petition must be filed within the worker’s H-1B validity period or any available grace period, and the worker must not have worked without authorization since his or her last lawful admission. A worker who was previously counted against the cap generally does not need to go through the registration process again.

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Change of Status and Consular Processing

The employer’s H-1B petition and the worker’s immigration status are separate matters. An approved petition, an H-1B visa stamp, and H-1B status each serve a different purpose.

A worker already in the United States in another nonimmigrant status may request a change to H-1B status through the employer’s petition. If USCIS approves both the petition and the change of status, H-1B status begins on the approved effective date without travel abroad; until then, employment requires separate authorization. Travel abroad while a change-of-status request is pending generally causes the change-of-status request to be treated as abandoned. An F-1 student whose employer timely files a cap-subject petition requesting a change of status generally receives an automatic “cap-gap” extension of F-1 status through April 1 of the fiscal year for which H-1B status is requested, or until the approved H-1B status begins, if earlier. The extension ends sooner if the petition is denied, rejected, or withdrawn. Work authorization is extended only if the student’s OPT work authorization was still valid when the petition was filed; a student whose petition is filed during the grace period after OPT ends receives an extension of status, but not of work authorization.

When a petition is approved for consular processing, the worker generally applies for an H-1B visa at a U.S. embassy or consulate and then seeks admission in H-1B status. Canadian citizens do not need a visa. The Department of State reviews the online presence, including social media, of H-1B visa applicants. Petition approval does not guarantee visa issuance, and a visa does not guarantee admission.

If a consular officer refuses a visa under section 221(g) of the Immigration and Nationality Act, the case may require additional documents or administrative processing. When documents are requested, Department of State guidance allows one year from the refusal to submit them; after that, a new application and fee are required. USCIS premium processing does not expedite consular administrative processing.

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H-1B Extensions and the Six-Year Limit

When an employer requests an extension for the same worker in the same position, USCIS generally defers to its prior approval if the parties and underlying facts have not materially changed. Under the American Competitiveness in the Twenty-First Century Act (AC21), as amended, H-1B status may be extended beyond six years in the following circumstances:

• In one-year increments, if a labor certification application or immigrant petition (Form I-140) was filed for the worker at least 365 days before the requested extension would begin, and the case has not been finally denied or withdrawn. A denial is not final while an appeal is available or pending. An approved labor certification that expires without an I-140 being filed cannot support further extensions.
• In increments of up to three years, if the worker has an approved I-140 petition but must wait for a green card because of the annual per-country limits.

These extensions may continue until a final decision is made on the worker’s application for permanent residence or an immigrant visa. For the one-year extensions, however, if the worker’s priority date becomes current and the worker does not apply for permanent residence within one year, further one-year extensions generally are not available, unless the delay was caused by circumstances beyond his or her control. If the priority date later retrogresses, the one-year period starts again when it next becomes current.

From H-1B to a Green Card

The H-1B classification permits “dual intent,” so an H-1B worker may pursue permanent residence without jeopardizing H-1B status. Most H-1B workers who seek a green card through employment use the second or third employment-based preference category, which generally requires PERM labor certification before the employer files Form I-140. Some workers qualify for categories that do not require labor certification, such as EB-1 extraordinary ability or the EB-2 National Interest Waiver. The right strategy depends on the worker’s qualifications, country of birth, and long-term plans.

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H-4 Status for Family Members

The spouse and unmarried children under 21 of an H-1B worker may accompany or join the worker in H-4 status. Certain H-4 spouses may also apply for employment authorization (the H-4 EAD). See our H-4 Visa and H-4 EAD page for details.

Employer Compliance and Site Visits

Sponsoring an H-1B worker carries continuing obligations to the Department of Labor and USCIS, including paying the required wage, filing amended petitions before material changes, and cooperating with compliance reviews. Our H-1B Employer Compliance page explains these obligations, our H-1B Site Visits page explains what employers should expect when USCIS visits a worksite, and our H-1B Audits page addresses Department of Labor investigations and record-keeping.

Current H-1B Developments

As of October 2026, a $100,000 payment for certain new H-1B petitions has been extended by proclamation but is blocked by court orders; DHS has proposed a $103,265 fee on cap-subject petitions and the elimination of the 60-day grace period; and the Department of Labor has proposed higher prevailing wages. None of the proposals is in effect as of October 2026. Our H-1B and H-4 Updates page tracks the current status of each.

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H-1B Frequently Asked Questions

How long does the H-1B process take?

The Department of Labor generally takes about a week to certify the Labor Condition Application, and USCIS processing times then vary. With premium processing, USCIS must take action within 15 business days, but that action may be a request for evidence rather than an approval. For cap-subject cases, registration takes place in March, petitions may be filed beginning April 1, and employment generally starts October 1. Requests for evidence and visa processing abroad can add time.

Who pays the H-1B fees?

The employer must pay the ACWIA training fee and the Fraud Prevention and Detection Fee. Other petition costs, including attorney fees, are the employer’s business expenses and may not be deducted from the worker’s pay or repaid by the worker if doing so would reduce the worker’s pay below the required wage. Fee arrangements should be reviewed before any payment or reimbursement is requested.

Does a U.S. master’s degree improve the chances of selection?

It can. Workers with a master’s or higher degree from a U.S. college or university get two chances: they are entered in the regular selection first and, if not chosen, they are entered again for the 20,000 additional visas reserved for advanced degree holders. Selection is still not guaranteed. Under the 2026 rule, the number of entries depends on the wage level offered, not the degree.

Can an H-1B worker change employers?

Yes. The new employer must file its own H-1B petition. If the worker qualifies for portability, he or she may begin the new job once the petition is properly filed, or on its requested start date, whichever is later. See our H-1B Transfers page.

Can my spouse work in the United States?

Only with employment authorization; H-4 status alone does not permit work. An H-4 spouse may apply for an H-4 employment authorization document (EAD) when the H-1B worker has an approved Form I-140 or has been extended beyond six years based on a pending green card process, and may begin working only after the EAD is approved. See our H-4 Visa and H-4 EAD page.

Can an H-1B worker apply for a green card?

Yes. The H-1B classification permits dual intent, so the worker may pursue permanent residence while in H-1B status. Starting a green card case does not by itself extend H-1B status or work authorization, but a pending or approved case may allow H-1B extensions beyond the six-year limit.

Is the $100,000 H-1B payment being collected?

As of October 2026, no. The payment has been extended by proclamation, but court orders currently bar the government from implementing it, and the litigation continues. It is separate from the proposed $103,265 fee. Our H-1B and H-4 Updates page tracks the status of both.

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Talk with an H-1B Lawyer

We serve clients worldwide from our offices in Columbus and Dublin, Ohio. From anywhere in the world, feel free to phone or email one of our attorneys at Shihab Burke LLC Immigration Lawyers so we can discuss your specific visa needs and options.