Section A: What is the H-1B Visa?
The H-1B visa is a nonimmigrant work classification that allows a US employer to sponsor a qualifying foreign national to work in the United States in a specialty occupation for a defined period. The route is employer-led, which means the employer files the petition and the worker’s eligibility is assessed through the specific job, the wage and the worker’s credentials.
For cap-subject cases, selection through the annual registration process is often the gating issue, so employers and workers typically need a plan that covers both selection and what happens next if a registration is not selected.
1. H-1B visa at a Glance
The H-1B visa is a nonimmigrant (temporary) classification for skilled overseas nationals to work in the United States in a specialty occupation for an authorized sponsor.
This is a sponsored visa category where a US-based employer will first need to file a petition on behalf of the beneficiary (ie the H-1B applicant) before the visa application can be made.
H-1B eligibility and viability typically turn on three practical questions. First, whether the role qualifies as a specialty occupation and the job description supports that classification. Second, whether the worker’s degree, licensing or experience maps cleanly to the role and the specialty occupation analysis. Third, whether the employer can meet the wage, worksite and compliance requirements that apply under the Labor Condition Application framework and the H-1B petition.
2. What is the H-1B Visa Cap?
The H-1B program is subject to an annual cap on the number of new H-1B approvals that can be granted each fiscal year under the cap system by US Citizenship and Immigration Services (USCIS).
Under the current H-1B visa cap, only 85,000 visas, comprising 65,000 for beneficiaries with bachelor’s degrees and 20,000 for those with Master’s degrees, are made available each fiscal year. Of the 65,000 regular cap numbers, up to 6,800 are reserved for H-1B1 under the Chile and Singapore free trade agreements. Any H-1B numbers not used are added back to the next year’s H-1B regular cap.
H-1B foreign workers who will be performing services in the Commonwealth of the Northern Mariana Islands and Guam are exempt from the H-1B cap for qualifying employment for petitions filed through December 31, 2029.
Each year the demand for the H-1B visa typically exceeds the number of visas available under the cap system. The H-1B registration process is used to collate the details of those wishing to apply, and USCIS uses a weighted selection process to determine which employers can proceed to file a cap-subject petition. Under the weighted selection framework in place for the FY 2027 H-1B cap season, registrations associated with higher-skilled and higher-paid beneficiaries are given greater selection weight, while maintaining the opportunity for employers to secure H-1B workers at all wage levels.
Read our detailed guide to the H-1B cap selection process here >
3. H-1B Visa Cap Exemptions
Certain applications are exempt from the H-1B annual cap. These include:
a. Foreign nationals who have been counted toward the cap within the last six years (for example, a foreign national already working for a US company in H-1B status with time remaining in H-1B status).
b. Foreign nationals who will be employed in the US at an institution of higher education (HEI), or an affiliated non-profit entity, a non-profit research organization, or a government research organization.
Petitions falling within the cap exemption rules can bypass the cap selection process and be filed by their sponsor at any time outside of the cap system deadlines, provided this is no earlier than 6 months before the job role is scheduled to begin.
To determine if a petitioner qualifies for the H-1B cap exemption as either an HEI or as a qualifying non-profit entity or research organization, the employer needs to be:
i. under the Higher Education Act of 1965, an accredited public or other non-profit institution licensed to provide post-secondary education to students, offering bachelor’s degrees or no less than 2-year courses with degree credit;
ii. under the Internal Revenue Code of 1986, categorized as tax-exempt and approved as a tax-exempt organization for research and/or educational purposes by the IRS, such as hospitals and medical research institutions;
iii. under the Code of Federal Regulations, primarily engaged in basic or applied research, such as in the (social) sciences or humanities, or is a federal, state or local entity whose primary mission is the performance and/or promotion of research.
iv. for nonprofit entities claiming affiliation with an institution of higher education, the relationship needs to be formal and documented, such as shared ownership or control, board control, or a written agreement that shows an active working relationship tied to the school’s educational or research mission.
Even where the H-1B employer does not meet the necessary cap exemption requirements, but the placement of the worker in a specialty occupation will be predominantly at the location of a cap exempt employer, a case can still be made for a cap-exempt H-1B visa.
However, the petitioning employer must establish a nexus between the duties that will be performed by the overseas worker and the purpose, mission, objectives and/or functions of the cap exempt employer. This could include, for example, a consulting firm looking to recruit a foreign candidate to perform qualifying specialty occupation services to be provided to an approved non-profit organization, such as a university’s medical research facility.
4. H-1B Visa Validity Period
H-1B visas are initially issued for a period of up to three years. They can be extended for a further three years, provided the worker remains eligible, up to the maximum total of six years for a single period of H-1B status.
Exceptions to the six-year cap include extensions available under certain conditions, such as pending labor certification or I-140 petitions (Green Card application).
For cap-subject filings, the earliest start date is October 1 of the fiscal year. USCIS accepts petitions up to six months before the requested start date.
5. Benefits of the H-1B visa
The US remains a highly attractive destination for skilled and specialized workers from across the globe. The H-1B program is the primary route for such workers, offering many benefits for those able to secure a visa.
Working in the United States on an H-1B visa can open doors to a wide range of specialized job opportunities in fields such as technology, engineering, finance, healthcare, and more. Those with expertise in niche areas or with specific skill sets often find lucrative job offers in the US market, which may not be readily available in their home countries.
US employers also typically offer competitive compensation packages and benefits to attract and retain skilled H-1B visa holders. Working in the US can also provide valuable cultural exchange and networking opportunities, with opportunities to collaborate with colleagues from diverse backgrounds, exchange ideas, and build professional connections that can benefit their careers in the long term.
A key benefit of the H-1B program is that H-1B visa holders can be joined in the US by their spouses and dependent children under the age of 21. To do so, they have to apply for an H-4 visa, which will allow them to reside with you as the primary visa holder in the US. Spouses and children under 21 can apply for H-4 visa status. Only certain H-4 spouses qualify for work authorization, usually where the H-1B principal has an approved I-140 or a qualifying AC21 extension. H-4 children cannot work.
For EAD renewals filed on or after October 30, 2025, the 540-day automatic extension ended except for limited categories specified by DHS. H-4 spouses should file renewals as early as permitted to avoid gaps in work authorization.
For many foreign workers, the H-1B visa also serves as the stepping stone towards obtaining permanent residency (Green Card) in the United States.
6. What the H-1B visa allows and restricts
The H-1B is tied to the specific job and sponsoring employer described in the petition. Work authorization is limited to employment that matches the role, worksite arrangements and terms set out in the filing, unless a separate petition is filed to cover a change of employer or concurrent employment. Where a worker is moving to a new H-1B employer, portability may allow the worker to start with the new employer after USCIS issues a receipt for a non-frivolous petition, provided the worker is in valid status and has not engaged in unauthorized employment.
H-1B status is also sensitive to material changes. Changes to duties, work location, hours or salary can create amendment risk where the change alters the terms and conditions of employment in a way that impacts the original eligibility analysis or the Labor Condition Application framework. This is particularly important for hybrid and multi-site roles, and for third-party placement arrangements where control, supervision and the day-to-day work structure can be scrutinized.
7. Cap season planning and what happens if a registration is not selected
For cap-subject cases, the H-1B process has two distinct phases, selection and petitioning. Registration is typically opened for a short window in March, selections are issued after the window closes and selected employers then receive a defined filing period to submit the full petition. Under the FY 2027 framework, selection is weighted in favor of higher-skilled and higher-paid beneficiaries, which means wage positioning and role design can affect competitiveness at the registration stage as well as at petition filing.
Where a registration is not selected, the options are usually strategic rather than procedural. Employers and workers often consider whether a cap-exempt role is viable, whether a different US work classification is a better match for the individual and the business need, or whether to structure mobility planning around a later cap season.
NNU: Attorney Perspective
The H-1B program genuinely takes a village. It’s not a process that can be left to the worker to manage alone. Successful cases depend on early collaboration between HR, legal advisers, hiring managers and the candidate, with a significant amount of preparation necessary before registration can even be submitted.
For employers, the cycle is long and without room for error. Missing a registration window or failing at any stage typically means starting again and waiting for the next cap season in the next year, unless a viable alternative visa route can be identified and implemented in time.
Section B: H-1B Visa Eligibility Requirements
Eligibility for the H-1B visa is assessed through the interaction between the role, the worker and the sponsoring employer. USCIS does not assess eligibility in the abstract. Instead, the agency looks at whether the specific job on offer qualifies as a specialty occupation, whether the worker’s qualifications align with that role and whether the employer can meet the wage, worksite and compliance requirements attached to sponsorship. Weakness in any one of these areas can undermine an otherwise viable case, particularly under the FY 2027 weighted selection framework where role design and wage positioning influence competitiveness at the registration stage.
1. H-1B Visa Educational Requirement
To qualify for an H-1B visa, foreign workers should meet one of the following criteria:
a. Hold a bachelor’s or higher degree required by the specialty occupation from an accredited US college or university.
b. Hold a foreign degree that has been evaluated and determined to be equivalent to a US bachelor’s or higher degree required by the specialty occupation.
c. Hold an unrestricted state license, registration or certification that authorizes immediate practice in the specialty occupation in the state of intended employment.
d. Demonstrate a combination of education, specialized training and progressively responsible experience that is equivalent to completion of a US bachelor’s or higher degree in the specialty occupation, together with recognition of expertise through progressively responsible roles directly related to the field.
USCIS accepts a US bachelor’s or higher degree in the relevant field, a foreign equivalent degree, a qualifying professional license or a structured combination of education and experience that equates to the required degree level. Where experience is relied on in place of formal education, the evidence should be detailed and credible, showing progression, increasing responsibility and a clear connection to the specialty occupation being sponsored.
In practice, degree equivalency and experience-based cases attract closer scrutiny. Credential evaluations, detailed experience letters and a clear explanation of how the worker’s background aligns with the role are often decisive, particularly where the job title or duties are not immediately recognisable as degree-led. Under the weighted selection system, weaker degree alignment can also affect a role’s overall competitiveness at the registration stage.
2. Specialty Occupation Requirement
The H-1B visa is restricted to roles that qualify as specialty occupations. These are positions that require the theoretical and practical application of highly specialized knowledge and normally require at least a bachelor’s degree or its equivalent in a specific field of study.
To meet the specialty occupation requirement, the position should satisfy at least one of the following criteria:
a. A bachelor’s or higher degree, or its equivalent, is normally the minimum requirement for entry into the position.
b. The degree requirement is common to the industry for parallel positions, or the role is so complex or unique that it can only be performed by an individual with a degree.
c. The employer normally requires a degree or its equivalent for the position.
d. The nature of the duties is so specialized and complex that the knowledge required is usually associated with the attainment of a bachelor’s or higher degree.
USCIS looks beyond job titles and focuses on the substance of the role. Generic or overly broad job descriptions, roles that appear entry-level in nature or positions where the degree requirement is not clearly linked to the duties can trigger requests for evidence or refusals. This risk is heightened for emerging roles, hybrid positions and positions that cut across multiple disciplines.
The same specialty occupation standards apply to roles with cap-exempt employers and cap-subject employers. Cap exemption affects access to the cap selection process, not the underlying eligibility analysis.
Examples of roles that may qualify include IT professionals, engineers, scientists, researchers, healthcare professionals, lawyers and certain business and analytics roles. Eligibility depends on how the role is framed and supported, not simply on the industry label.
Read our full guide to H-1B specialty occupations here >
3. Employer Sponsorship and Wage Requirements
The H-1B is an employer-sponsored route. The sponsoring employer, referred to as the petitioner, carries the primary compliance burden and controls the structure and timing of the application.
The role on offer should qualify as a specialty occupation and should require the theoretical and practical application of specialized knowledge, together with at least a bachelor’s degree or its equivalent in a directly related field. The employer should be able to show how the role fits within its business, where the worker will be based and how the worker will be supervised and managed.
Before filing an H-1B petition, the employer is required to obtain certification of a Labor Condition Application (LCA) from the US Department of Labor. Through the LCA, the employer attests that it will pay the H-1B worker the required wage, which is the higher of the wage paid to similarly employed workers or the prevailing wage for the occupation and geographic area of employment.
Prevailing wage levels vary by occupation, location and seniority. Misalignment between the job duties, the wage level selected and the business reality of the role is a common trigger for scrutiny. Under the FY 2027 weighted selection framework, wage positioning is also relevant earlier in the process, as higher-paid roles may carry greater selection weight at the registration stage.
The employer is responsible for filing Form I-129, paying the required filing fees and submitting supporting evidence, including details of the business, the job on offer and the worker’s qualifications. Once the worker starts employment, the employer remains responsible for ongoing compliance, including adherence to the LCA terms, recordkeeping obligations and notification of material changes in the employment relationship.
Eligibility failures at this stage are rarely technical. They tend to arise because the role, the wage or the business model does not withstand closer examination when viewed together, rather than in isolation.
NNU: Attorney Perspective
The role should be assessed through the lens of the adjudicator. A position that works perfectly well internally does not always translate cleanly into immigration terms, so it should be stress-tested before an H-1B is pursued.
USCIS will assess eligibility holistically rather than as a series of standalone checks. The degree should make sense for the role, and the qualifications, duties and pay should align as a coherent whole.
Experience-based cases and emerging roles are often more exposed because they rely on explanation rather than assumptions. These cases need careful drafting and well-organised evidence to show how the role meets the specialty occupation standard and how the worker’s background supports the job being sponsored.
Section C: How to Apply for an H-1B Visa
The H-1B application process is employer-led and highly structured. For cap-subject cases, the process is split between registration under the annual cap system and the filing of a full petition within a defined window. Under the FY 2027 framework, registration is no longer a neutral administrative step. Role design, wage positioning and overall case strategy can influence competitiveness at the selection stage as well as at petition filing.
1. Step-by-Step Guide to the H-1B Application Process
Applying for an H-1B visa generally involves the following stages.
Step 1: Electronic Registration
For cap-subject filings, the process begins with electronic registration through the USCIS online system. The employer submits a registration for each foreign worker it intends to sponsor and pays the required registration fee for each named beneficiary.
The registration stage collects high-level information about the employer and the worker. Supporting documents are not submitted at this stage, but the information provided still matters. Under the FY 2027 rules, USCIS applies a weighted selection process where registrations associated with higher-skilled and higher-paid beneficiaries are given greater selection weight, while still allowing selection at all wage levels.
USCIS operates a beneficiary-centric system. Each beneficiary is entered once into the selection process, even where multiple employers submit registrations for the same individual. This structure prevents duplicate filings from increasing selection odds and places greater emphasis on how the role and wage are positioned at the registration stage.
The registration window is typically open for a short period in March. For the FY 2026 cap season, registration opened on March 7, 2025 and closed on March 24, 2025. Registration timing within the window does not affect selection, as the process is not first-come, first-served.
Only employers with selected registrations are permitted to file Form I-129 for the relevant fiscal year. USCIS issues selection notices through the employer’s online account and assigns a defined filing window, typically 90 days, within which the petition should be submitted.
USCIS may conduct additional selection rounds later in the fiscal year if the initial filings do not result in sufficient approved petitions to meet the annual cap.
Step 2: Labor Condition Application (LCA)
Before an H-1B petition can be filed, the employer is required to obtain certification of a Labor Condition Application from the US Department of Labor.
The LCA confirms the employer’s attestations that:
a. The worker will be paid at least the required wage for the occupation and location.
b. The employment of the H-1B worker will not adversely affect the working conditions of similarly employed US workers.
c. There is no strike, lockout or work stoppage in the relevant occupation at the place of employment, or that appropriate notice will be given if this changes.
d. Notice of the LCA has been or will be provided to workers in the same occupational classification and a copy will be provided to the H-1B worker.
LCAs are filed electronically and are typically certified within seven working days. Because the LCA is role- and location-specific, worksite arrangements should be considered carefully before registration and filing, particularly for hybrid, remote or multi-site roles.
Only once the LCA has been certified can the employer proceed to file Form I-129 for a selected registration.
Step 3: File Form I-129
Following LCA certification, the employer files Form I-129, Petition for a Nonimmigrant Worker, with USCIS within the assigned filing window.
For cap-subject cases, a petition will only be accepted if it is linked to a valid, selected registration for the named beneficiary and fiscal year. Petitions filed outside the designated window or without a valid selection notice are rejected.
Form I-129 requires detailed information about the employer, the job role and the worker’s qualifications. Supporting evidence typically includes the certified LCA, educational credentials, degree evaluations where applicable, experience letters, job descriptions, organisational information and evidence addressing any third-party placement or off-site work arrangements.
USCIS reviews the petition for both eligibility and credibility. Requests for Evidence frequently focus on specialty occupation analysis, degree-to-role alignment, wage level selection, employer-employee relationship and right to control in third-party worksite scenarios.
Once adjudication is complete, USCIS issues a decision approving or denying the petition.
Approval of Form I-129 does not always involve a visa application. Where a change of status is granted, the worker may begin H-1B employment in the United States without leaving the country. Where consular processing is required or elected, the worker applies for an H-1B visa at a US consulate abroad.
Step 4: Visa Application and Interview
Where consular processing applies, the worker completes Form DS-160 and attends a visa interview at a US embassy or consulate before traveling to the United States.
Interview procedures and timelines vary by post. The consular officer assesses whether the applicant meets the H-1B criteria, intends to perform the petitioned role and is otherwise admissible. Approval of the petition by USCIS does not guarantee visa issuance.
From October 1, 2025, interview waiver eligibility has been significantly narrowed. Most H-1B applicants should expect to attend an in-person interview unless a specific waiver category applies.
Some cases are subject to additional administrative processing after interview, which can extend decision timelines beyond initial expectations.
Read more about the H-1B visa interview here >
2. Cap Season Timeline and Start Dates
For cap-subject filings, the H-1B timeline is fixed by regulation rather than business need. Registration takes place in the spring, petitions are filed shortly thereafter and approved workers may start employment no earlier than October 1 of the relevant fiscal year.
This structure creates planning pressure for employers seeking to onboard talent earlier in the year and for workers whose existing status may expire before October 1. Under the weighted selection system, early planning around role design and wage positioning can affect both selection prospects and downstream petition viability.
3. What Happens If a Registration Is Not Selected
Non-selection does not involve a refusal or negative decision on eligibility. It reflects the operation of the annual cap and, under the FY 2027 framework, the relative competitiveness of registrations within the weighted selection system.
Where a registration is not selected, employers and workers typically need to reassess timing and strategy. This may involve considering cap-exempt roles, alternative visa classifications, overseas placement or planning for a future cap season. Early contingency planning is particularly important for employers with time-sensitive hiring needs or project delivery commitments.
NNU: Attorney Perspective
The FY 2027 H-1B cap season introduces a new approach to selection. The process is no longer neutral or purely random. Instead, USCIS applies a weighted selection framework that favours higher-skilled and higher-paid roles. As this new system beds in, early advice and planning will be increasingly important to manage selection and compliance risk.
In all cases, employers and applicants should approach the H-1B process fully prepared. The role, duties, wage, candidate profile and compliance position should be mapped out in advance. Once a registration is selected, the filing windows that follow are tight and leave little room for correction or restructuring.
Section D: H-1B Supporting Documents
The strength of an H-1B petition often turns on how well the supporting evidence explains and substantiates the role, the worker’s qualifications and the employer’s business reality. USCIS does not assess documents in isolation. Adjudicators look for consistency across the petition forms, the Labor Condition Application and the supporting materials, and for a coherent narrative that shows why this specific role requires a degree-qualified professional and why this specific worker is suitably qualified to perform it.
1. Educational Credentials
Educational evidence should demonstrate that the worker meets the degree requirement for the specialty occupation. This typically includes copies of diplomas, degree certificates and academic transcripts. Where the degree was obtained outside the United States, a credential evaluation is often required to confirm equivalency to a US bachelor’s or higher degree in a relevant field.
If the worker is relying in part or in full on experience in place of a formal degree, the supporting evidence should explain how that experience equates to academic study. This is usually done through detailed employer reference letters that describe duties, progression, complexity and duration, rather than generic confirmation of employment dates.
2. Employment Offer and Role Description
A formal employment offer letter should outline the job title, core duties, salary, benefits, work location and expected duration of employment. This document should align closely with the job description used in the H-1B petition and with the occupational classification relied on for the Labor Condition Application.
USCIS frequently compares offer letters, job descriptions and organisational charts. Inconsistencies between these documents can raise questions about the true nature of the role or the level of expertise required.
3. Labor Condition Application (LCA)
A certified copy of the approved Labor Condition Application should be included with the petition. The LCA confirms the wage level, job location and occupational classification and underpins several of the employer’s compliance obligations.
Because the LCA is location-specific, changes to worksite arrangements after filing can create amendment risk. This is particularly relevant for roles that involve hybrid working, multiple worksites or off-site client placements.
4. Form I-129 and Supporting Employer Evidence
Form I-129 is the core petition document and should be completed accurately and consistently with the supporting evidence. In addition to the form itself, employers often submit documentation showing the nature and scale of the business, such as company profiles, organisational charts, contracts, client letters or project descriptions.
For newer or smaller employers, additional evidence may be needed to show that the business can support the offered role and pay the required wage for the duration requested.
5. Passport and Identity Documents
The worker should provide a valid passport with an expiry date that extends beyond the intended period of stay. Passport biographic pages are typically included to confirm identity and nationality.
Where consular processing applies, passport validity can also affect visa issuance timelines and should be checked early.
6. Resume or Curriculum Vitae
A detailed resume or curriculum vitae should outline the worker’s education, professional experience, skills and progression. The resume should support, rather than contradict, the experience letters and qualifications relied on elsewhere in the petition.
Gaps, overlaps or unexplained changes in employment history can attract questions, particularly where experience is being used to establish degree equivalency.
7. Specialty Occupation Evidence
Evidence supporting the specialty occupation analysis often goes beyond a single job description. This can include industry materials, internal role descriptions, explanations of why a degree is normally required for the role and how the duties align with the claimed occupational classification.
For roles that are new, interdisciplinary or evolving, additional explanation is often needed to bridge the gap between the formal classification system and the realities of the position being offered.
8. Work Experience Letters
Experience letters from previous employers should describe the worker’s duties, level of responsibility, tools or technologies used and the dates of employment. Where experience is relied on to meet degree requirements, the letters should be sufficiently detailed to allow USCIS to assess equivalency.
Generic or formulaic letters that lack substance are a common weakness in experience-based cases.
9. Third-Party Placement Evidence
For roles involving off-site or client-site work, additional evidence is usually required. This can include end-client letters, statements of work, contracts and documentation showing the sponsoring employer’s right to control the worker’s day-to-day activities.
USCIS scrutinises third-party arrangements closely, particularly where supervision, evaluation or work product ownership is unclear. Clear documentation of control and oversight is often decisive in these cases.
10. Consistency Across the Petition
One of the most common reasons for requests for evidence is inconsistency. Salary figures, work locations, duties and dates should align across the Labor Condition Application, Form I-129 and all supporting documents.
A well-prepared H-1B petition reads as a single, coherent case rather than a collection of disconnected documents.
NNU: Attorney Perspective
The biggest challenge with supporting evidence is rarely the volume of documents required. The real issue is the substance and coherence of the case being presented. USCIS adjudicators will not “join the dots.” Inconsistencies between the Labor Condition Application, petition forms and supporting evidence are one of the fastest ways to lose credibility.
In practice, unclear or poorly aligned evidence often results in Requests for Evidence, which shifts the burden entirely onto the employer to justify decisions that could have been explained clearly in the initial filing.
Certain employment arrangements are attracting closer scrutiny than others, including third-party placements, hybrid working models and fast-growing businesses. In these cases, the employer’s ability to demonstrate control, supervision and continuity of the role is examined more closely.
Section E: Visa Approval and Beyond
Approval of an H-1B petition is a significant milestone, but it is not the end of the process. Both employers and workers need to understand what approval actually confers, how status is activated and maintained and what ongoing obligations apply once employment begins. Many compliance issues arise after approval rather than during the filing stage, often because the practical implications of H-1B status are misunderstood.
1. H-1B Approved: What Happens Next
When an H-1B petition is approved, US Citizenship and Immigration Services issues Form I-797 Notice of Action. What happens next depends on whether the worker is changing status inside the United States or applying for an H-1B visa abroad.
Where a change of status is approved, the worker may begin H-1B employment in the United States on or after the approved start date without leaving the country. A visa stamp is not required to remain in the US in valid H-1B status, although it will be required for future re-entry after travel abroad.
Where consular processing applies, the worker attends a visa interview at a US embassy or consulate and, if approved, receives an H-1B visa stamp in their passport. Admission to the United States is still subject to inspection by US Customs and Border Protection, and entry is granted at the port of entry rather than by USCIS.
Workers should carry key documents when travelling, including the Form I-797 approval notice, a copy of the H-1B petition and a current employment confirmation letter.
2. Conditions of Stay and Permitted Employment
H-1B status authorises employment only in the role, location and conditions described in the approved petition. Working outside those parameters without appropriate filings can place the worker out of status and create exposure for the employer.
Changes such as moving to a new employer, taking on concurrent employment, altering core duties, reducing hours or changing work locations can require a new petition or an amended filing. Portability provisions may allow a worker to begin employment with a new H-1B sponsor once USCIS issues a receipt for a non-frivolous petition, provided the worker remains in valid status and has not engaged in unauthorised employment.
If employment ends before the validity period expires, a discretionary grace period of up to 60 days may be available to allow the worker to seek a new sponsor, change status or depart the United States.
3. Employment Rights and Protections
H-1B workers benefit from specific statutory and regulatory protections. Employers are required to pay at least the required wage stated on the Labor Condition Application and to offer working conditions that do not adversely affect similarly employed US workers.
The obligation to pay the required wage can continue during certain periods of non-productive time where the worker is available for work, which can create risk where projects are delayed or assignments change. Understanding pay obligations and termination procedures is therefore important for compliance planning.
4. Extending H-1B Status
H-1B status is typically granted for an initial period of up to three years and may be extended for a further period, up to a general maximum of six years in H-1B classification.
Extensions beyond the six-year limit may be available in certain circumstances, most commonly where the worker is the beneficiary of a pending or approved employment-based immigrant petition or labor certification and qualifies for extensions under the relevant statutory provisions.
The Department of State operated a limited domestic H-1B visa renewal pilot in early 2024. There is currently no ongoing, broad domestic renewal programme, and most workers should plan on consular processing when a visa stamp is required.
5. Path to Permanent Residency
The H-1B is a dual-intent classification, which means holding or applying for permanent residence does not, in itself, undermine H-1B eligibility. Many H-1B workers pursue permanent residency through employer-sponsored routes.
Common pathways include the employment-based second and third preference categories. These processes typically involve labor certification, followed by the filing of an immigrant petition and, once a visa number is available, an application for adjustment of status or consular processing.
Green Card timelines can be lengthy and are influenced by role, category and country of chargeability. Early planning is often needed to align H-1B extensions, travel and long-term workforce needs.
Read more about applying for a Green Card with an H-1B visa >
NNU: Attorney Perspective
An approved H-1B petition is not the end of the commitment or investment for either the employer or the worker.
H-1B status is sensitive, and even relatively minor changes to duties, pay or work arrangements can affect status and may trigger a compliance obligation for both the worker and the sponsoring employer.
Workers also need to remain alert to their visa conditions, including travel requirements, employer changes and the limits of permitted employment.
H-1B sponsorship is an ongoing obligation and should remain an active consideration for as long as the status remains in place.
Section F: Tips for H-1B Visa Applicants
Even where a registration is selected and the underlying role and worker appear to meet the H-1B criteria, outcomes often turn on execution. Timing, internal consistency and the way evidence is framed can materially affect how a case is assessed. This is particularly relevant under the FY 2027 framework, where registration competitiveness, petition strength and post-approval compliance are more closely linked than under earlier cap systems.
1. Tips for Compiling H-1B Supporting Documents
Errors or weaknesses in supporting documentation frequently lead to delays, requests for evidence or refusals. These issues are often avoidable with structured preparation and early review.
a. Starting early is important. Gathering academic records, experience letters, credential evaluations and employer documents can take longer than expected, particularly where third parties or overseas institutions are involved.
b. Documents should be organised around the eligibility tests rather than collected as a bundle. Each item should clearly support either the specialty occupation analysis, the worker’s qualifications or the employer’s compliance position.
c. Accuracy and internal consistency are critical. Dates, job titles, duties, salaries and locations should align across Form I-129, the Labor Condition Application and all supporting evidence. Inconsistencies are one of the most common triggers for scrutiny.
d. Copies should be clear, complete and legible. Poor-quality scans, missing pages or partially translated documents can undermine credibility and lead to follow-up requests.
e. Evidence should be relevant and proportionate. Over-submission without explanation can obscure key points, while under-submission can leave gaps in the eligibility analysis.
f. Where the role or the worker’s background is not straightforward, explanatory statements can be helpful. A short, well-structured explanation can often pre-empt questions that would otherwise result in a request for evidence.
g. Instructions from USCIS should be followed precisely. Filing addresses, fee amounts and form editions change periodically, and technical errors can result in rejection before a case is even reviewed.
2. Preparing for the Visa Interview
Where consular processing applies, the visa interview is a distinct stage that focuses on admissibility, credibility and intent. Preparation should be practical rather than rehearsed.
a. Applicants should be familiar with the role, the sponsoring employer and the contents of the petition. Inconsistencies between interview answers and the petition record can cause concern.
b. It is advisable to review the Form DS-160 and the approved petition before the interview so that dates, prior travel and employment history are fresh and accurate.
c. Common interview topics include the nature of the job, how the role fits the applicant’s background, where the work will be performed and how long the applicant expects to remain in the United States.
d. Answers should be honest and concise. Providing speculative or unnecessary information can create issues that were not present in the underlying petition.
e. Applicants should be prepared for questions about prior US immigration history, previous refusals or status changes, and any gaps in employment.
f. Professional presentation matters. While there is no formal dress code, business-appropriate attire and a composed approach help reinforce credibility.
g. Some cases are referred for administrative processing after interview. This is not a refusal, but it can extend timelines and should be factored into travel and start-date planning.
Overall, strong H-1B cases are rarely undone by a single issue. Problems tend to arise where small weaknesses accumulate across documentation, timing and communication. A coordinated approach between employer and worker helps reduce these risks.
Section G: Summary
The H-1B visa remains the primary US immigration route for employing foreign national professionals in degree-level roles, but it is also one of the most constrained and closely scrutinised work visa categories. Eligibility depends on the interaction between the role, the worker’s qualifications and the employer’s ability to meet sponsorship and compliance requirements. Under the FY 2027 framework, selection through the annual registration process is no longer neutral, with role design, wage positioning and skill level influencing competitiveness at the registration stage.
For employers, effective H-1B planning involves more than securing a registration selection. Wage setting, worksite structure, job design and longer-term workforce planning all affect whether a petition is viable and sustainable. Decisions taken months before registration can determine both selection prospects and downstream approval risk.
For workers, understanding the limits of the classification, particularly around permitted employment, travel and extensions, remains central to maintaining lawful status. Where selection does not occur, or where the H-1B route does not align with business or personal objectives, alternative visa strategies may need to be assessed early to manage timing, cost and operational impact.
Section H: Need Assistance with the H-1B Visa?
NNU Immigration are dedicated US immigration attorneys advising employers and workers on the full lifecycle of H-1B sponsorship, from assessing role eligibility, managing cap-season strategy, preparing and filing petitions, responding to requests for evidence and advising on post-approval compliance.
We also advise employers on broader talent mobility planning, including where the H-1B route may not be the most effective option and alternative classifications should be explored. This can be particularly relevant for organizations with time-critical hiring needs or repeat exposure to the annual cap.
For specialist US visa and immigration advice, contact us or book a fixed-fee telephone consultation to put your questions directly to one of our attorneys.
Section I: H-1B FAQs
What is an H-1B visa?
An H-1B visa is a nonimmigrant work classification that allows a US employer to employ a foreign national in a specialty occupation that normally requires at least a bachelor’s degree or its equivalent.
Who can sponsor an H-1B worker?
Any US employer that can demonstrate a qualifying specialty occupation role and meet the wage, worksite and compliance requirements may sponsor an H-1B worker. Some employers, such as universities and certain non-profit or research organisations, may qualify for cap-exempt sponsorship.
Is the H-1B visa subject to a lottery?
Most new H-1B petitions are subject to the annual cap and lottery system. Employers register during the annual registration window, and USCIS conducts a random selection where registrations exceed available cap numbers.
How long can someone stay in the US on an H-1B visa?
H-1B status is usually granted for up to three years at a time, with a general maximum of six years. Extensions beyond six years may be available in limited circumstances, often linked to a pending or approved employment-based Green Card process.
Can an H-1B holder change employers?
A worker may change employers if the new employer files an H-1B petition on their behalf. In many cases, the worker may begin work with the new employer once USCIS issues a receipt for a properly filed, non-frivolous petition.
Can family members join an H-1B worker in the US?
Spouses and unmarried children under 21 may apply for H-4 dependent status. Certain H-4 spouses may qualify for work authorisation, but children are not permitted to work.
Does an H-1B visa lead directly to permanent residence?
While the H-1B allows dual intent and can support a transition to permanent residence, a separate Green Card process is required and approval is not automatic.
Section J: Glossary of H-1B Visa Terms
| Term | Definition |
|---|---|
| H-1B Visa | A US nonimmigrant work classification allowing employers to sponsor foreign nationals in specialty occupations. |
| Specialty Occupation | A role requiring specialised knowledge and normally at least a bachelor’s degree or equivalent in a specific field. |
| Labor Condition Application (LCA) | A filing with the US Department of Labor where the employer attests to wage and working condition requirements. |
| Form I-129 | The petition filed by a US employer to classify a worker under the H-1B or other nonimmigrant categories. |
| Cap-Subject | Refers to H-1B petitions counted against the annual numerical limit. |
| Cap-Exempt | Refers to H-1B petitions not subject to the annual cap, typically involving certain non-profit, research or educational employers. |
| Prevailing Wage | The wage level set by the Department of Labor for a specific occupation and location. |
| Dual Intent | The ability to hold nonimmigrant status while pursuing permanent residence. |
Section K: Additional Resources
| Resource | Description | Link |
|---|---|---|
| US Citizenship and Immigration Services (USCIS) | Official government authority responsible for administering the H-1B programme, registration system, petition adjudication and policy guidance. | https://www.uscis.gov/ |
| US Department of Labor (DOL) | Oversees Labor Condition Applications, prevailing wage determinations and employer compliance obligations under the H-1B route. | https://www.dol.gov/ |
| US Department of State – Visa Services | Provides information on consular processing, visa interviews, stamping requirements and entry to the United States. | https://travel.state.gov/content/travel/en/us-visas.html |
| American Immigration Lawyers Association (AILA) | Professional association offering legal analysis, practice resources and policy updates on US immigration law. | https://www.aila.org/ |
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
