H-1B Visa
Roadmap

What Is the H-1B Classification?

The H-1B classification is available to foreign professionals coming temporarily to the U.S. to fill a U.S. employer's "specialty occupation" position. A specialty occupation position requires the employee to hold at least a bachelor's degree or its equivalent and to apply highly specialized knowledge to perform the duties and responsibilities of the position.

Specialty occupations generally include positions in accounting, architecture, arts, education, engineering, law, mathematics, medicine, and management and executive positions where a specific education is required to perform the duties. For example, "Vice President of Engineering" or "Product Manager" would likely qualify when it is demonstrated that the job requires an engineering degree.

H-1B Requirements

The foreign national (FN) and the U.S. employer must meet the following basic requirements to qualify for H-1B status:

Qualifying Credentials

The foreign national must possess one of the following credentials to qualify for H-1B status:

• A minimum of a bachelor's degree in a field directly related to the specialty occupation from an accredited U.S. school.
• A foreign degree that has been evaluated to be the equivalent of such a U.S. degree.
• An unrestricted license or certification to practice, if the specialty occupation requires it.
• Verifiable and recognized education, experience, or training found to be the equivalent of a bachelor's degree or higher in a relevant field, along with a relevant history of increasingly responsible positions. As a rule of thumb, three years of relevant work experience is equivalent to one year of university education.

FEIN Verification for First-Time Petitioners

Employers who have never filed an H-1B petition must ensure that their federal employer identification number (FEIN) is registered and verified. This process includes providing the organization's SS-4 letter, on which the IRS assigned their FEIN, to the DOL. This allows the DOL to confirm the FEIN belongs to the company and enter the information into DOL systems.

In lieu of the SS-4 letter, employers may submit at least two documents from third parties showing the employer's FEIN. These documents may include a tax return, IRS Form 941, a bank letter, or a state employment record. Once requested, the FEIN registration takes three to five business days to complete.

The Labor Condition Application (LCA)

The U.S. employer must certify to the DOL that, in hiring the FN, they will protect similarly employed U.S. workers in the same geographic area. To this end, the employer electronically files Form 9035, also known as a Labor Condition Application (LCA), with the DOL. The LCA is typically certified and returned in five to seven business days.

The LCA filing certifies the following:

• The employer is paying the higher of either the wages it pays its own similarly employed workers or 100 percent of the wages paid to similar workers employed in the same geographic region.
• The working conditions of U.S. workers employed at the employment site are not adversely affected by the hiring of the FN.
• There is no strike or lockout at the worksite nor in the occupation for which a foreign professional is sought.
• The employer has given notice to current employees that it is seeking to hire an H-1B professional — by posting a notice in two conspicuous places for 10 consecutive business days, providing communication to the designated collective bargaining representative if applicable, or through electronic notification in certain qualifying cases.

Required Documentation

The H-1B petition filed with U.S. Citizenship and Immigration Services (USCIS) must contain the following:

• The certified Form 9035 Labor Condition Application (LCA).
• A very detailed description of the position offered, including job title, specific job duties and responsibilities, and salary.
• Evidence that the position qualifies as a specialty occupation.
• Information about the U.S. company, such as corporate tax returns, financials, and company brochures or website excerpts. It may also be helpful to provide details of projects the FN will be working on while in H-1B status.
• Copies of the FN's educational credentials, including transcripts, degree certificates, and education evaluations (where applicable).
• The FN's résumé and proof of any relevant job experience.

Period of Admission

An initial stay is granted for three years at a time, for a maximum total of six years. After six years, the FN must spend one year abroad, outside the U.S., to become eligible for another six years in H-1B status.

Extensions Beyond Six Years (AC21)

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) allows for exceptions to the six-year limit in the following situations:

• The beneficiary of an already approved employment-based I-140 immigrant petition qualifies for extensions of H-1B status in three-year increments if he or she is subject to long wait times caused by a country-specific backlog in available immigrant visas.
• The beneficiary of an I-140 petition or PERM that has been pending for over 365 days qualifies for extensions of H-1B status in one-year increments until the immigrant petition is approved or denied.

Family Members (H-4 Status)

The H-1B worker's spouse and unmarried children under the age of 21 are eligible to apply for H-4 status to accompany or join the H-1B principal in the United States. H-4 status allows the H-1B's spouse and children to attend school in the U.S., but not to work.

However, under the AC21, if an H-1B principal has an approved I-140 petition or has received an AC21 status extension, their H-4 spouse may apply for a work permit.

Dual Intent

U.S. immigration regulations make clear that H-1B status must be temporary. However, H-1B holders are not required to maintain a residence outside the United States to demonstrate temporary intent. In fact, FNs in H-1B status are allowed to demonstrate an intent to live and work permanently in the U.S. This is called the concept of "dual intent," allowing H-1B (and L-1) status holders to simultaneously have temporary (nonimmigrant) intent and permanent (immigrant, or green card) intent to live and work in the United States.

The New $100,000 Fee for Certain H-1B Petitions

Effective September 21, 2025, the administration implemented an additional $100,000 payment requirement for certain H-1B petitions. The $100,000 must be paid in addition to all other government filing fees and applies to both cap-subject and cap-exempt H-1B petitions.

When the Fee Applies

• New H-1B petitions for beneficiaries outside the U.S. who do not already have a valid H-1B visa.
• H-1B petitions requesting notification of a U.S. consulate, port of entry, or pre-flight inspection.
• H-1B petitions requesting a change of status, amendment, or extension of stay for which the beneficiary is not eligible.

When the Fee Does Not Apply

• Previously issued and currently valid H-1B visas.
• H-1B petitions filed before September 21, 2025.
• H-1B petitions requesting a change of status, amendment, or extension of stay for a beneficiary inside the U.S. that is approved.

Understanding the H-1B Cap

Congress has mandated a cap on the number of new H-1Bs that can be issued each year. This cap allows for approximately 85,000 total H-1Bs, split between two categories.

Typically, the demand far outpaces the number of available cap-subject H-1Bs. For this reason, USCIS conducts a random lottery to determine for which foreign nationals an H-1B petition may be filed.

Electronic Registration Requirement

USCIS has an electronic H-1B registration process for cap-subject petitions under which employers first submit an electronic registration and pay an H-1B registration fee. The process is beneficiary-centric, meaning it tracks and identifies registrations based on the FN's passport or travel document data. The online registration form also asks for data points relating to the employer and prospective employee, including whether the FN has obtained a U.S. master's or higher degree.

Starting with the FY 2027 H-1B cap season, registrants (i.e., prospective employers) must also indicate the highest OEWS wage level (I through IV) that the beneficiary's proffered wage equals or exceeds for the relevant SOC code of the position and the area(s) of intended employment.

The H-1B registration period generally lasts for a minimum of 14 calendar days, typically starting in early March.

Weighted Selection Process (FY 2027 Onward)

Starting with the FY 2027 cap season in the spring of 2026, USCIS will implement a weighted selection process based on each beneficiary's wage level. Higher wage levels receive more entries in the selection pool, significantly improving their odds of selection.

Two Rounds of Selection

Employers Not Subject to the H-1B Cap

Exceptions to the H-1B cap exist for institutions of higher education (or related nonprofit entities), nonprofit research organizations, or government research organizations. This is a nuanced area of law and generally requires a seasoned immigration attorney to properly evaluate if a potential petitioning organization would be exempt from the numeric H-1B cap.

Founders & Business Owners

Beneficiaries who have a controlling interest in a petitioning entity — either by owning more than 50% of the petitioner or by having majority voting rights — may be eligible for H-1B status if they perform specialty occupation duties a "majority of the time" and non-specialty occupation duties are directly related to owning and directing a business.

The same applies to sole owners of a business, as long as there is a bona fide job offer, the business has a legal presence in the U.S., is amenable to service of process, has an IRS tax ID, and the sole owner will perform specialty occupation duties a majority of the time.

Recapturing Time Spent Abroad

H-1B status is generally limited to a total of six years, and extensions beyond the six-year maximum are available only to certain FNs in line for permanent residence. However, counted toward this six-year limit are only those days on which the FN is physically present in the U.S. and in H-1B status.

This means that any full day spent abroad, for whatever reason, and even any full day spent in the U.S. but in a different nonimmigrant status (except L-1) can later be reclaimed and added back to the FN's allowance of H-1B time until the six-year limit has been met.

H-1B Remainder Periods

An FN who was previously admitted to the U.S. in H-1B status but did not exhaust their full period of admission and instead left the U.S. can seek readmission for the remainder of the initial six-year admission period at any time. If the initial petition was already counted toward the H-1B cap, then the FN is cap-exempt when claiming the remainder period. In many cases, this can be a great alternative to filing an entirely new cap-subject petition.

“A systems analyst from India was approved for a cap-subject H-1B and spent two years in H-1B status. She then returned to India for seven years. If she now wants to come back, her new employer can file a non-cap H-1B petition for the remaining four years of the six-year maximum.”

— Example Scenario

Documenting Recapture & Remainder Claims

In requesting a recapture of time or a remainder period, the H-1B petitioner should present a chart listing the exact time periods the FN spent outside the U.S., along with supporting evidence such as:

• I-94 records and passport stamps
• Airplane tickets and boarding passes
• Receipts of purchases made abroad
• Documentation of time spent in the U.S. in a different status (other than H-1 or L-1)

Any time successfully recaptured will also be given to the H-1B principal's spouse and children in H-4 status.

Does the Position Require a Bachelor's Degree?

Just because the employer requires a bachelor's degree for the position does not mean USCIS will agree. USCIS defines a "specialty occupation" as one that requires a theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation.

USCIS's standards for a specialty occupation require that the position must meet one of four criteria:

Evidence to Prove Specialty Occupation

Evidence commonly submitted to meet the specialty occupation requirement includes:

• An excerpt from the Occupational Outlook Handbook about the position that specifically states a bachelor's degree is a minimum requirement for the occupation.
• Letters attesting that the degree requirement is normal in the industry and parallel positions among similar organizations.
• The employer's organizational chart showing similarly employed individuals and copies of those individuals' credentials evidencing they also possess a bachelor's degree or equivalent.
• A detailed list of the position's duties and responsibilities, including other positions in and outside the company with whom the foreign national will interact in performing the job.

Is There Enough Specialty Occupation Work?

For established companies with years of operating history and scores of employees, proving that there will be enough specialty occupation work available for the full H-1B period is usually not difficult. However, it can be a problem for startups and less established companies, particularly first-time H-1B petitioners.

To prove this criterion, the startup company must provide evidence that there is indeed enough work. Such evidence may include:

• Contracts or services agreements with clients covering at least three years.
• R&D progress reports and a Gantt chart showing R&D stages with projections of when each project will be completed.
• A business plan demonstrating the company's trajectory and need for the position.
• Company brochures and pamphlets outlining the products or services offered and showing ongoing business operations requiring the FN to perform specialty occupation duties for the duration of the requested period.

Legal & Policy Sources

• 8 C.F.R. § 214.2(h)(4)
• 20 C.F.R. § 655.700
• 20 C.F.R. § 655.730
• Vol. 9, Foreign Affairs Manual § 402.10
• USCIS Interoffice Memorandum HQPRD 70/6.2.8
• USCIS: H-1B Specialty Occupations
• USCIS: Organizational Accounts Frequently Asked Questions
• USCIS: Strengthened Integrity Measures for H-1B Program
• GovInfo: American Competitiveness in the Twenty-First Century Act