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H1B Visa

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H1B Visa

Non-US workers may be eligible for an H1B visa if they are coming to the USA to perform services for a qualifying sponsor in a specialty occupation that requires graduate-level skill.

The H-1B visa application process is, however, far from straightforward and has been subject to extensive reform in 2024. Strict timeframes apply, with a single, annual, electronic registration period in March for visas that will be valid from later that same year. This means the employer and the employee must be organized and plan in advance of the annual registration windown opening. 

In addition, given the cap on the number of H1-B visas that can be allocated each year, and the high volumes of registrations that are received. employers cannot be certain that an application will be granted. So as well as preparing for the H1-B petition process, employers typically also need to consider alternative immigration routes for prospective skilled workers.


NNU Immigration are here to help!

NNU Immigration are specialists across all classes of US visa, including the H1B visa.

As dedicated US immigration attorneys with exceptional knowledge and insight into the visa application processes, we advise businesses and their non-US employees on available US visa and immigration options, including the H1B visa. We provide full support on the application process and guidance on compiling all the necessary documentation. 

In light of the H1B cap, we also help companies explore alternative visa options to meet their US immigration requirements.

Contact our H1B visa experts

For advice on any aspect of a US visa application, contact our US immigration attorneys.

Contact our H-1B visa experts

For advice on any aspect of the H-1B visa application process, contact our US immigration attorneys. 

Contact our H-1B visa experts

For advice on any aspect of the H-1B visa application process, contact our US immigration attorneys. 


H1B Visa Frequently Asked Questions

What are the H1B visa requirements?

The H1B visa is specifically open only to graduate-level workers in specialty occupations requiring theoretical or technical expertise in specialized fields.

To qualify as a specialty occupation, the position must meet one of the following criteria:

  • A bachelor’s or higher degree, or its equivalent, is normally the minimum requirement for entry into the particular position;
  • The degree requirement for the position is common to the industry, or the particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

To qualify to perform services in a specialty occupation, the worker must meet one of the following criteria:

  • Have a bachelor’s or higher degree required by the specialty occupation from an accredited US college or university;
  • Have a foreign degree determined to be equivalent to a US bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
  • Have an unrestricted state license, registration or certification which authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
  • Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a US bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly relate to the specialty.

What is the H1B visa cap?

The H1B visa category has an annual numerical cap which limits the total number of foreign nationals provided H1B status to 65,000 per fiscal year, with an additional allocation of H1B status to 20,000 foreign nationals per fiscal year with a US master’s degree or higher.



How does the H1B visa cap work?

The H1B visa is a nonimmigrant (temporary) classification which applies to skilled overseas nationals who wish to perform services in the United States in a specialty occupation. This is a sponsored visa category where a US-based employer will first need to file a petition on behalf of the beneficiary. It is also subject to a cap on the number of nonimmigrant visas that can be approved each fiscal year by US Citizenship and Immigration Services (USCIS).

Under the current H1B visa cap, only 85,000 visas — comprising 65,000 for beneficiaries with bachelor’s degrees and 20,000 for those with master’s degrees — will be adjudicated by USCIS, but with annual demand significantly in excess of this numerical limit.

To make the H1B process fair, when an employer petitions to USCIS on behalf of an H1B worker to fill a specialty occupation role, the petition will be subject to a H1B random lottery process, where only those petitions randomly selected will go on to be adjudicated.



What is the H1-B electronic registration process?

The first stage of making a cap-subject H1-B application is the electronic registration process.

This requires the H1B employer to register with USCIS and pay a registration fee for each H1B applicant (‘beneficiary’) it intends to sponsor. This registration fee is $10 in 2024, but is increasing to $215 per beneficiary effective from the registration window in 2025.

Under new rules introduced in early 2024, the revised lottery assigns each registered beneficiary one unique identification number, preventing duplicate registrations and ensuring all individuals have an equal chance of selection.

The registration window is open for a period of at least 14 days each year, usually during March. In 2024, the registration window is open from March 6, 2024, to March 22, 2024.

Registrations can be made at any time during this specified period, and once the window is closed, registrations will be selected at random.

Only those with selected registrations will be invited to file H-1B cap-subject petitions.

Employers can now petition for H-1B visas with start dates up to 90 days before the beneficiary’s authorized stay expires, offering greater flexibility in employment planning. This is a change from the previous requirement for employment to commence on October 1 of the same fiscal year.



What are the H1B visa cap exemptions?

Certain individuals are exempt from the H1B annual cap and an H1B petition may be filed on their behalf at any time, regardless of whether the annual cap has been met. Such individuals include:

  • 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 H1B status with time remaining in H1B status).
  • Foreign nationals who will be employed in the US at an institution of higher education or an affiliated non-profit entity, a non-profit research organization, or a government research organization.


What is the H1B application process?

Applying for an H1B visa involves the following:

  • Employer (sponsor) registers electronically for each H-1B visa applicant.
  • Employer (sponsor) files a Labor Condition Application (LCA) with the US Department of Labor (DOL).
  • If the registration is selected, the H-1B cap-subject petition is filed.
  • H-1B applicant attends a visa interview at a US consular post abroad.

Prospective petitioners seeking to file H1B cap subject petitions, including for any beneficiaries eligible for the advanced degree exemption, must first electronically register with USCIS and pay the H1B registration fee for each prospective beneficiary. Under this registration process, prospective petitioners (also known as registrants) seeking to employ H1B workers subject to the cap must provide basic information about both the petitioner and each requested foreign worker.

It is only employers with selected registrations that can go on to file an H1B petition using Form I-129 (Petition for Nonimmigrant Worker). Under the H1B registration process, a cap subject petition will not be classed as properly filed unless based on a valid and selected registration for the named beneficiary and appropriate fiscal year. An employer must also have proof of a DOL-certified LCA for the H1B petition to be approved.

It is only once the H1B petition has been approved that the prospective visa applicant can apply via the US Department of State at their nearest US Embassy or Consulate using Form DS-160 (Online Nonimmigrant Visa Application). Approval of an H1B petition does not guarantee the issuance of a visa, where the applicant must still attend an interview.



What is the LCA?

Before filing an H1B visa petition, the employer must first file an LCA for certification by the DOL which attests:

  • It will pay the worker at least the same wage paid to similarly qualified workers in the geographic area where they will be working.
  • The working conditions of similarly employed workers will not be adversely affected by the worker’s employment and they will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to US workers.
  • There is no strike, lockout, or work stoppage in the occupation at the prospective place of employment, and if one occurs after the LCA is submitted, the Employment & Training Administration (ETA) will be notified and the LCA will not be used until the strike, lockout, or work stoppage has ceased. And,
  • Notice of the LCA has been or will be provided to workers employed in the same occupation, and the worker will be provided a copy of the LCA.

LCAs are typically submitted to the DOL electronically and are reviewed within seven working days. Once the LCA has been certified, the employer may proceed with filing the H1B petition.


What supporting documents are needed for the H1B visa application?

The H1B petition must include the following documentation to demonstrate eligibility for the H1B visa:

  • Documentation which establishes the worker is qualified to perform services in a specialty occupation including, as applicable:
  • Copies of the qualifying degree certificate(s) and transcripts;
  • Educational and/or experiential evaluations;
  • Letters from present and/or former employers certifying as to the worker’s recognition and expertise in the specialty occupation; and
  • Applicable licenses required to fully perform the duties of the application. AND
  • Documentation which establishes that the services to be performed in the US are in a specialty occupation, including copies of any written contracts between the worker and employer, or a summary of the terms of the oral agreement under which they will be employed.
  • A copy of the certified LCA, discussed above, must also be included with the petition.

Once the H1B petition is complete, it will be submitted to USCIS for adjudication. Processing times may vary depending on USCIS caseload and service status.



What is an H-1B RFE (Request for further evidence)?

If during the adjudication process a USCIS adjudicating officer determines that additional information and/or documentation is needed to render a decision on the case, a request for additional information will be issued. Such requests vary in length depending on the extent of information and documentation requested.

Upon receipt of the requested information and documentation, USCIS will resume processing of the petition.



Is H1B premium processing available?

For an additional fee of $2,805, premium processing of the H1B petition can be requested for a fast-tracked decision.

Under this service, USCIS will adjudicate the case within 15 calendar days of receipt, subject to any cap-imposed adjustments. If a request for additional evidence is issued on a petition filed using the premium processing service, USCIS will have an additional 15 calendar days from receipt of the response to adjudicate the case.

Note that use of the premium service does not afford any special cap benefits.



What happens at the H1B visa interview?

If the H1B petition is approved, the applicant must arrange a visa interview at a US consular post abroad. Interview procedures vary widely among consular posts so it is important the instructions provided are followed.

During the interview, a consular officer will ask the applicant questions to confirm the information provided in the H1B petition about the worker and their US employment.

The applicant will be notified of the decision at the interview. Provided the application is approved the consular officer will retain the worker’s passport for visa stamping.

The worker’s passport with embossed H1B visa stamp will be returned to them within approximately one week of the interview. Once received, the worker is permitted to travel to the US to work in H1B status in line with the employment conditions provided in the H1B petition.



What is a cap exempt H1B visa?

H1B visas are subject to an annual limit of 65,000 visas, although the first 20,000 petitions filed on behalf of beneficiaries with US master’s degrees or higher will be exempt from this cap, allowing for a total of 85,000 new H1B statuses and visas every year.

Up to 6,800 visas are also put aside from the 65,000 limit each year for H1B1 visas under legislation implementing the US-Chile and US-Singapore free trade agreements. Unused visas in this group will then be made available for H1B use for the next year’s regular H1B cap. Similarly, H1B foreign workers who will be performing services in the Commonwealth of the Northern Mariana Islands and Guam may also be exempt, provided their prospective US employer files a petition on their behalf before the end of 2029.

Typically, however, when referring to a cap exempt H1B visa, this refers to visas with employers in the United States who themselves are H1B exempt. In these cases, any petition falling within the cap exemption rules can completely bypass the lottery process. To qualify for a cap exempt H1B visa, the employer filing the petition must be a higher educational institution (HEI), a nonprofit entity that is either related to or affiliated with a HEI, or a nonprofit research organization or a government research organization.



Who qualifies for cap exempt H1B visas?

To determine if a petitioner qualifies for the H1B cap exemption as either a HEI, or as a qualifying nonprofit entity or research organisation, the employer must be:

  • under the Higher Education Act of 1965, an accredited public or other nonprofit institution licensed to provide post-secondary education to students, offering bachelor’s degrees or no less than 2-year courses with degree credit;
  • under the Internal Revenue Code of 1986, categorised as tax-exempt and approved as a tax-exempt organisation for research and/or educational purposes by the IRS, such as hospitals and medical research institutions;
  • 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.

Even if the H1B 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 H1B 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 nonprofit organisation, such as a university’s medical research facility.



Who can sponsor an H1B worker?

Any US-based employer can sponsor an H1B worker, provided the role on offer meets the eligibility requirements for an H1B visa. This means that the role, as a minimum for entry, must require the theoretical and practical application of highly specialised knowledge to fully perform the chosen occupation, together with at least a bachelor’s degree or its equivalent in the particular occupation. H1B specialty occupations can include jobs in accounting, law, engineering, architecture, mathematics, the physical and social sciences, medicine and health, education, business specialties, theology and the various arts.

Importantly, the same eligibility requirements apply to job roles in the United States with H1B cap exempt employers as for cap subject employers.



Do you need a job to apply for an H1B visa?

To apply for an H1B visa, an overseas national will first need the offer of a job in a specialty occupation that meets the relevant requirements for this category of visa. This is because the employer will be required to petition to USCIS on behalf of the beneficiary (the visa applicant), and only once a petition has been approved can a visa application be made.

There are plenty of jobs available in the USA that will meet these criteria, where most graduate level jobs that normally require either a bachelor’s or higher degree as a minimum entry requirement can qualify as a specialty occupation. However, not only must the job role meet certain occupation requirements, but the beneficiary themselves must be qualified or experienced to perform services in the chosen specialty occupation having attained at least a bachelor’s degree, or its equivalent in experience, in that particular occupation.



What are the H1B visa minimum salary rules?

Prior to petitioning for an H1B visa, the employer must first obtain a certification of a Labor Condition Application (LCA) from the US Department of Labor (DOL). This requires the employer to attest to certain labor requirements, including paying the H1B worker no less than the wage paid to a similarly qualified domestic worker or, if greater, the prevailing wage for the position in the geographic area in which the H1B worker will be working.

The minimum salary for H1B visas will primarily be determined by the prevailing wage for the occupation in the specific region where the job is located. The DOL sets these prevailing wage rates, which vary depending on the job, its location and level of expertise required.

The general minimum wage threshold for H1B workers is set at a prevailing wage of $60,000 annually, but if the actual wage for the specific job in the area of employment is higher than this threshold, the H1B worker must be paid at least that higher amount.



Can the H1B visa be renewed?

The H1B visa is a nonimmigrant (temporary) visa, where this will typically be granted for an initial period of up to 3 years, although both cap subject and cap exempt employers may file a petition to extend the visa-holder’s stay, typically up to a maximum of 6 years.

A pilot scheme is being run in 2024 to assess the viability of in-country H1B renewals.

To remain in the US longer than six years, H1B visa holders can become eligible for a Green Card and file for an adjustment of status to permanent residency.



Can dependents apply under the H1B visa?

H1B spouses and dependant children under the age of 21 may apply for the H-4 visa, which will allow them to reside with the primary visa holder in the US. With an H-4 visa, family members can work, study, obtain a driver’s license, open a bank account while in the US.



What are the H1B visa timings?

When it comes to the H1B registration process timeline for the fiscal year (FY) 2024, petitioners can begin creating H1B registrant accounts on 21 February 2024, with the H1B registration period opening on March 6, 2024 and closing on March 22, 2024.

Petitions can then be filed by those selected in the lottery from April 1, 2024.



How much does the H1B visa cost?

The cost to file Form I-129 (Petition for Nonimmigrant Worker) has increased to $780 for bigger companies filing petitions postmarked after April 1, 2024. The fee is reduced to $460 for small employers and nonprofits.



Who pays the H1B visa application fees?

The petitioner will be responsible for paying the Form I-129 fee, while the visa applicant will be responsible for paying the DS-160 fee (currently $205), unless the employer agrees to reimburse this.

It is also possible for a petitioner to pay for faster, premium processing by filing Form I-907 (Request for Premium Processing Service) at the same time as filing Form I-129. For a $2,805 fee, USCIS guarantee that some adjudicative action will be taken on the case within a period of 15 calendar days or they will refund the premium processing fee and still continue with expedited processing. The 15-day period will run from when UISCIS properly receives Form I-907 at the correct filing address on that form, together with the correct filing fee.

However, paying for premium processing does not give special cap benefits to applicants, but simply expedites the speed at which USCIS will process a petition in most cases.



How do you check the results of the H1B lottery?

The electronic registration period for the H1B computerised lottery process typically runs in March of each year for a just a limited window of time. Once registered, USCIS then uses the data provided during this process to help determine whether a petition is subject to the annual 65,000 regular cap or the 20,000 advanced degree exemption.

The initial selections will take place after the March 2024 registration period closes, so there is no requirement to register on the day that the registration period opens. USCIS intends to notify selected registrants from this round of selection on or around 31 March 2024. If insufficient numbers are met during the initial registration to meet the annual H1B cap, further selections will be made by USCIS in around July of the same fiscal year.

USCIS will notify registrants and their representatives with selected registrations via their USCIS online accounts that they set up in order to register in the first place. However, registrants and representatives that are not selected will not be notified until after USCIS has determined that they have reached the H1B cap for that fiscal year.



When can a petition be filed if successful in the lottery?

If a registration is selected during the initial FY 2024 lottery selection period, the earliest date that a FY 2024 H1B cap subject petition can be filed is April 1, 2024. If additional registration selections need to be made during the second round in July 2024, the earliest date that FY 2024 H1B cap subject petitions may be filed is August 2, 2024. The petitioner will be given a designated 90-day filing window on their Registration Selection Notice.

For H1B cap exempt employers, where there is no lottery registration window, a petition can be filed on behalf of a beneficiary at any point during the year, provided this is filed no earlier than 6 months before the beneficiary’s job role is scheduled to begin.



What are the H1B visa interview questions?

The applicant may be asked a number of different questions by the Embassy or Consular officer to determine their eligibility for an H1B visa, predominantly to determine that they genuinely intend to perform the specialty occupation and they are otherwise eligible.

The applicant will usually be informed at the end of their interview if their application for an H1B visa has been successful. If so, they will need to wait a few further days for their visa to be processed. On receipt of their visa, they will be able to travel to the United States, although admission must still be granted by US Customs and Border Protection officers.



Does an H1B visa lead to a green card?

The H1B visa is also a dual-intent visa, where visa-holders may be eligible for lawful permanent residency by applying for a green card. However, an immigrant petition would need to be filed on behalf of the H1B visa-holder by their employer. This can be both a costly and lengthy process, where advice from an immigration attorney should be sought.


Need specialist advice? Speak to our experts.

Need specialist advice? Speak to our experts.