The H-1B Visa, Explained

Eligibility

The H-1B allows U.S. employers to sponsor foreign professionals in specialty occupations requiring at least a bachelor's degree.

A U.S. employer with a specialty-occupation job offer, and a candidate with the required degree or equivalent experience.

Annual Cap

Most H-1B visas are subject to a yearly lottery-based cap, with registration typically opening each March. Selected candidates then file the full petition.

Duration

Initially granted for up to three years, and generally extendable to a maximum of six.

Family

Spouses and unmarried children under 21 may accompany the visa holder on H-4 status; some H-4 spouses may also qualify for work authorization.

What We Handle

Petition preparation and filing, cap-registration strategy, extensions, and change-of-status or transfer petitions when moving between employers. We work directly with your employer's HR or legal team to keep the process moving.

What Makes a Job a Specialty Occupation

The category turns on the job, not on the candidate. A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge, and requires a bachelor's or higher degree in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation.

The words "directly related" and "specific" are where most petitions are tested. A position that will accept any four-year degree is a weaker fit than one that requires a particular field of study, and a job description that lists several unrelated acceptable majors invites the question of whether a specific specialty is really required at all.

On the candidate's side, the requirement can be met by a U.S. bachelor's or higher degree in the field, an equivalent foreign degree, an unrestricted state license to practice the occupation, or a combination of education, specialized training, and progressive responsible experience that a credentials evaluation shows to be equivalent.

The strongest petitions establish the requirement from the employer's side and the qualification from the employee's side as two separate showings, with evidence for each.

How the Cap Season Actually Runs

For cap-subject cases the year has a rhythm, and it is unforgiving of late starts.

Registration typically opens in March. Employers register each candidate electronically for a nominal fee, USCIS runs the selection, and only selected registrations may file a full petition. A cap-subject petition must request a start date of October 1 or later, and cannot be filed more than six months before that requested start date.

The selection process is not what it was. USCIS has moved away from purely random selection toward a process that weights registrations according to the wage level of the offered position, so a higher-wage-level offer now carries more weight in selection than a lower one. How a given season's selection works should be confirmed before an employer builds hiring plans around it.

Practically, this means an employer who wants a candidate on staff in the fall needs to be having the conversation in January or February, not in March. If a candidate is not selected, the alternatives — a cap-exempt employer, a different category, work abroad for a year and try again — are all decisions with lead time attached.

Employers Who Are Not Subject to the Cap

Not every H-1B goes through the lottery. Petitions filed by, or for work at, an institution of higher education, a nonprofit entity related to or affiliated with such an institution, a nonprofit research organization, or a governmental research organization are not subject to the numerical cap.

This matters more than it sounds. A cap-exempt employer can file at any point in the year, which means a candidate who was not selected in the lottery is not necessarily out of options. Nashville has a substantial university and hospital presence, and cap-exempt possibilities come up more often here than people expect.

Concurrent employment is also possible in some situations, where a person holds cap-exempt H-1B employment and adds a second, cap-subject position. The rules are specific and the structure has to be built correctly, but it is a real path.

The Labor Condition Application

Before a petition can be filed, the employer must obtain a Labor Condition Application certified by the Department of Labor. This is a real obligation with ongoing consequences, not a form to be swept through.

In it, the employer attests to four things: that it will pay the H-1B worker no less than the actual wage paid to similarly qualified workers or the prevailing wage for the occupation in the area of employment, whichever is higher; that the employment will not adversely affect the working conditions of similarly employed workers; that there is no strike or lockout at the place of employment; and that notice of the filing has been given to the bargaining representative or posted at the place of employment.

The wage obligation continues for as long as the worker is employed, and it applies even during nonproductive time attributable to the employer. Employers who treat the LCA as paperwork and then diverge from it in practice create exposure that surfaces later, sometimes years later.

A change in the worker's job location can require a new LCA and, in some cases, an amended petition. Tell us about a move before it happens.

Six Years, and What Comes After

H-1B status is granted for up to three years initially and may be extended for up to three more, for a total period of admission of six years.

Two well-established routes allow extension beyond six years for someone pursuing permanent residence. Where a labor certification or an immigrant petition has been on file for at least 365 days, extensions are available in increments of up to one year. Where an immigrant petition has been approved but a visa number is not yet available because of per-country or worldwide limits, extensions are available in longer increments.

This is why employers and employees who intend to pursue a green card are usually better off starting that process well before year five. The extension routes exist, but they depend on filings that have to already be in place.

One newer limitation is easy to miss: where the beneficiary holds a controlling interest in the petitioning employer, the initial petition and the first extension are each limited to a shorter validity period than the standard three years. Founders sponsoring themselves through their own company should plan around that.

Changing Employers, and Losing One

H-1B portability allows a worker to begin employment with a new employer as soon as that employer properly files a non-frivolous petition, or as of the requested start date on that petition, whichever is later. The worker does not have to wait for the approval.

Portability has conditions: the worker must have been lawfully admitted, must not have worked without authorization since that admission, and the new petition must be filed before the current authorized period of stay expires. If the new petition is denied, the portability authorization ends.

If employment ends, there is a limited grace period — up to 60 consecutive days, or until the end of the authorized validity period, whichever is shorter — during which a worker may remain and pursue a new petition or a change of status. That window is short and it starts immediately. The time to call an immigration attorney is the day employment ends, not the week the grace period expires.

Family Members on H-4 Status

A spouse and unmarried children under 21 may be eligible for H-4 status for the same period as the principal worker. H-4 holders may study.

Work authorization for an H-4 spouse is available, but not to everyone in H-4 status. It is limited to spouses of H-1B workers who are the principal beneficiary of an approved immigrant worker petition, or who have been granted H-1B time beyond the six-year limit under the extension provisions described above. Where it applies, the spouse files a separate application and the resulting authorization expires with the H-4 admission period.

Because automatic extensions for expiring work permits are far more limited than they were, an H-4 spouse relying on work authorization should file renewals as early as the category allows.

Who This Guide Is Not For

This guide covers the cap-subject, employer-sponsored H-1B. If you are a Canadian or Mexican citizen in a USMCA-listed profession, the TN category has no cap and no lottery, and its guide describes a much shorter path.

If your record includes national or international recognition in your field, the O-1 has no annual cap either, and its guide covers the evidence that category is built on.

If you are investing in a U.S. business rather than being hired by one, see the investor and business visas guide.

This guide is not a green card guide. H-1B status is temporary; permanent residence through employment is a separate process with its own steps, and the two are usually planned together rather than sequentially.