Applying for an H1B Specialty Occupation Visa FAQs

As a prospective beneficiary of an H-1B petition, you must meet the following requirements: a) hold a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university or b) hold a foreign degree determined to be equivalent to a U.S. baccalaureate degree. USCIS may request an evaluation of a foreign degree to determine whether it is the equivalent of a U.S. baccalaureate; c) hold an unrestricted state license, registration, or certificate that authorizes full practice in the specialty occupation, or d) have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. baccalaureate or higher degree and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. If you hold a foreign degree or have progressive work experience from abroad that you want to prove you have the equivalent to a bachelor’s degree, some of the companies we recommend obtaining an equivalency from are World Education Service, Trustforte (with an Edge analysis), and Park Evaluation.

USCIS regulations define a “specialty occupation” as an occupation that requires theoretical and practical application of a body of highly specialized knowledge in fields including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the obtainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. Obtaining specialty visas for STEM majors is sometimes easier than majors in the humanities or communications. Thus, those seeking visas should plan ahead and choose a major that is favorable for the issuance of a visa.

To show that a position is a specialty occupation, the petitioning employer must show one of the following:

• • That a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.

 

• • That the degree of requirements characteristic of the industry in parallel positions, or alternatively, the specific position, is so complex or unique that it can be performed only by an individual with a degree.

 

• • That the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the obtainment of a baccalaureate or higher degree.

 

Universities and related nonprofit entities, nonprofit research organizations, and government research organizations are exempt from the cap. These employers can submit an H-1B application to the USCIS anytime during the year without concern for the fiscal year limit. However, a person who works for an H-1B cap-exempt employer who changes jobs to a non-exempt employer may become subject to the H-1B cap. There is also an exemption from the annual cap for the first 20,000 new H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education.

Each year, there is a congressionally mandated cap of 65,000 available H-1B visas, with an additional 20,000 H-1B visas allotted for foreign nationals holding U.S. advanced degrees. Once this cap has been reached, U.S. Citizenship and immigration services (USCIS) stops accepting H-1B petitions for processing until the next H-1B season. USCIS begins to accept filings of new H-1B petitions on April 1. Because the H-1B petitions cannot be filed more than six months before the requested start date, all employers in the U.S. seeking to hire new H-1B employees rush to file on April 1 to apply for the prospective employees to start work on October 1. In April 2023, USCIS reported 780,884 H-1B registrations for FY 2024, an increase of 61% over the 483,927 registrations for FY 2023.

Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee for each prospective beneficiary. The electronic registration process streamlines processing by reducing paperwork and data exchange and provides overall cost savings to employers seeking to file H-1B cap-subject petitions. Under this process, prospective petitioners (also known as registrants) and their authorized representatives who are seeking to employ H-1B workers subject to the cap complete a registration process that requires basic information about the prospective petitioner and each requested worker. The initial registration period is for a minimum of 14 calendar days each fiscal year. The H-1B selection process is then run on properly submitted electronic registrations. Only those with selected registrations are eligible to file H-1B cap-subject petitions.

No. The additional 20,000 H-1B visas are available only to individuals with advanced degrees from U.S. colleges and universities.

No. If you hold a degree from a foreign college or university, you must request a foreign degree credential evaluation that establishes that you have a foreign education equivalent to a US Degree. USCIS will review the credential evaluation to confirm that you qualify for the H-1B classification based on education alone. We recommend obtaining an equivalency from companies such as World Education Service, Trustforte (with an Edge analysis), or Park Evaluation.

Yes. The H-1B classification requires that the occupation itself normally requires at least a bachelor’s degree. However, you may establish that you qualify for the H-1B classification based on your professional experience. The experience is generally documented through letters from past employers that show progression to more responsible duties through the years of employment. In evaluating your professional experience, USCIS applies a three-for-one rule – three years of specialized training and/or experience is equivalent to one college-level year. Companies such as Park Evaluation and Trustforte have expert witnesses who can evaluate progressive work experience evaluations.

Getting H-1B status for certain types of jobs may be particularly difficult. Positions in sales can be difficult if they do not require special training. Some positions in the computer industry, especially computer programming, can be difficult because the minimum requirements for some computer-related jobs are not always well established. Obtaining specialty visas for STEM majors is sometimes easier than majors in the humanities or communications. Thus, visa seekers should plan ahead and choose a major that is favorable for the issuance of a visa.

No. Under the current regulations, H-4 dependent spouses of principal H-1B holders cannot work in the United States. There is, however, a small exception where the H1B holder has an approved I-140 or has their visa extended past the 6-year quota. However, as part of its effort to attract and retain highly skilled immigrants, the Department of Homeland Security is in the process of proposing rules to extend employment authorization to spouses of certain H-1B workers.

No. If you are employed by an institution of higher education or a related or affiliated nonprofit entity or by a nonprofit research organization or a government research organization, you are not subject to the cap. The employer can file the H-1B petition on your behalf at any time during the fiscal year and is not subject to the April 1 deadline. If you change employers and your new employer is not an institution of higher education or a nonprofit entity related to or affiliated with an institution of higher education or a government research organization, you will be subject to the cap. USCIS will allow an individual to work for both a cap-subject employer and a cap-exempt employer where the person continues to work at the cap-exempt employer concurrently.

An H-1B petition may be valid for up to three years. H-1B petitions may be extended for an additional period of up to three years to a maximum of six years. At the end of the sixth year, the individual must return home for a year before obtaining any new H-1B visa if the individual cannot change into another temporary or permanent visa category. Recapture of time spent outside the U.S. while in H-1B status is available since the six-year maximum only applies to time spent in H-1B status in the U.S. In some limited circumstances, you may be eligible for H-1B extensions past the six-year limit. For example, if you have a labor certification application, visa petition, or adjustment of status application pending for more than one year, you may receive a year-to-year extension after the sixth year. If you are a beneficiary of an approved I-140 petition and an immigrant visa is not available, extensions of three years may be available.

No. If you already hold an H-1B status in the United States, you have already been counted towards the cap (unless you were previously employed by an institution of higher education or an entity affiliated with an institution of higher education).

No. Because the H-1B visa is employer-specific, you may not be employed by a new employer until the new employer files a new H-1B petition on your behalf. Because you are already in H-1B status, you do not need to wait for the new H-1B petition to be approved. You can start work as soon the new employer receives a fee receipt from USCIS stating that USCIS has accepted the H-1B petition for processing.

The fees to USCIS for an H-1B petition include the $500.00 anti-fraud fee paid only for the initial petition, the $460.00 fee for the I-129 form, and an employer fee of either $1,500.00 for employers with more than 25 employees, or $750.00 for employers with 25 or fewer employees. These fees must be paid by the employer and cannot be paid by the employee. There is also a premium processing fee of $2805, which can be paid by either the employer or the employee. It is generally not necessary to premium process a case, but it is an option.

Yes. All H-1B workers must receive the same benefits as U.S. workers. USCIS regulations require that the foreign employee be paid the “prevailing wage” that is paid for the position in the geographic area of employment. This can be determined by accessing the Department of Labor online wage library for a preliminary determination or conducting a qualified survey and requesting a prevailing wage from the Department of Labor.

Yes. You can work for more than one employer, provided each employer obtains an H-1B visa on your behalf. H-1B visas are employer-specific; they only allow employment by the employer who has filed the petition and received a petition approval.

Employment by the U.S. employer cannot begin until the H-1B visa is approved unless the alien already has H-1B visa status. In that case, employment can begin as soon as a receipt notice has been obtained for the second H-1 B visa application. However, if an individual possesses previous employment authorization, such as a work authorization card, employment may be authorized up until the point that the H-1B visa is approved. If an individual already has an H-1B visa for the specific employer seeking to continue their employment, employment authorization is extended by filing the H-1B extension petition; it is not necessary that the petition be approved yet. An employee may continue to work 240 days past the current end date of their first visa as long as the request for an extension is filed on time.

We suggest letting the company know when you are interviewing with them that while you have current work authorization for one year (non-STEM) or up to three years (STEM), you will need to have them file for a work visa on your behalf at some point.

Not necessarily. Students should encourage employers to register for the H1B lottery every year the student is on OPT in order to increase their chances of being chosen for a visa. USCIS also now allows registrations to be filed in March for applicants graduating between April 1 and June 30 of that same year. However, most F-1 or J-1 students will find it advantageous to obtain practical training or academic training to begin working as soon as they are offered the job since cap-subject employment may not start until October 1, and H-1B employment may not be possible due to the cap.

Certain, but not all, J-1 exchange visitors may be subject to a two-year home country physical presence requirement and are not eligible for the H-1B status until the requirement has been satisfied or waived by the USCIS based on a recommendation from the U.S. Department of State. If this two-year requirement does not apply, you are eligible for H-1B status if you meet other eligibility requirements.

Yes, an employer can apply for the H-1B visa on your behalf while you are residing outside of the U.S. Once approved, you would obtain the H-1B visa stamp at a U.S. embassy/consulate and enter the U.S. in that status.

Yes, but your new employer must apply for an H-1B on your behalf. An H-1B approval is employer-specific. It permits an H-1B status holder to work only for the employer that filed the petition. If you decide to change employers, the new employer must apply for the H-1B on your behalf. This is a process called “porting.” You are porting your visa from the first company to the second.

Yes. The H-1B is also position-specific. Therefore, if your H1B employer wishes to significantly change your job duties or other conditions of employment after securing approval of your H-1B petition, the employer must submit an amended petition to the USCIS.

You may be eligible for other types of non-immigrant (temporary) status that would allow you to work in the United States, such as the E1 and E2 treaty/trader investment classifications, the TN status for Canadian or Mexican citizens, the H1B1 for Chilean and Singaporean nationals, the J-1 exchange visitor status, the E-3 status for Australian citizens, or the O-1 for those with extraordinary abilities.

You should be aware of the H1B lottery registration period that occurs in March every year. We strongly suggest our clients contact us as soon as they know they want to employ a non-citizen, and definitely before March of the year they wish to file for the visa. You should also know that if your registration was accepted, your company must still file the actual H-1B application between April 1 and June 30. Finally, your company should be aware that all H1B visas begin in October.

In FY 2024, 780,884 registrations were received, of which 758,994 were eligible for consideration.

Generally, six years. As an H-1B visa holder, you may be admitted for up to three years. This can be extended for another three years. After that time, you must remain outside the United States for one year before another H-1B visa petition can be approved. (certain H-1B visa holders working on defense department projects may remain in H-1B status for ten years.) However, if you have a labor certification (PERM) or I-140 petition for immigrant workers pending for over 365 days, you may obtain a one-year extension beyond the six-year limit until a decision is made on your PERM or I-140 petition. Additionally, if your I-140 petition has already been approved, but your priority date is not yet current (i.e., an immigrant visa is not available for you), you may apply for a three-year extension of your H-1B status.

Yes, an H1B visa holder can apply for a green card. Even though it is a non-immigrant visa, the H-1B is a ‘dual-intent visa.’ This means the visa holder can have legal immigration intent (apply for and obtain a green card) without affecting their H-1B status. You can get a green card through family or employer sponsorship.

If your petition was not chosen in the H-1B lottery, you may have some options. If you are a STEM student, you may qualify for an additional 18 months of OPT employment authorization document extension. The extension will give you an opportunity to continue working and apply for an H-1B again the following year. If you are a citizen of Canada or Mexico, you may be eligible for a TN visa. The TN classification is for Canadian and Mexican citizens who will perform professional assignments in the United States. You must perform a professional assignment (with a few exceptions) as specified on the North American Free Trade Agreement (NAFTA) occupations list and meet the corresponding educational and/or licensure requirements. If you are a citizen of Australia, you may qualify for an E-3 visa. The E-3 classification is for Australian citizens who will perform professional specialty occupations in the United States. You must perform a professional assignment in the United States and have a bachelor’s degree or equivalent. The E-3 visa requirements are very similar to H-1B visa requirements. Other work visas are listed on the USCIS website as well.

It is possible for your employer to terminate your H-1B job before the end of your authorized period of stay. If that happens, there is a grace period of 60 days after a loss of employment. During this time, you can file for a new H1B or other work visa. You can also leave the country. After that, you will be out of status because you must have a job to maintain your status. Whether you remain in the U.S., change your status to another visa, or leave the country, the employer will be liable for the cost of your return transportation to your home country. However, your employer will not be liable for the cost if you voluntarily resign.