H‑1B Visa: A clear, human‑friendly guide for U.S. employers and skilled workers
The H‑1B is the go‑to U.S. work visa for “specialty occupations” that usually require at least a bachelor’s degree in a specific field. It’s popular in tech, finance, healthcare, research, and more. If you’re an employer trying to hire talent, or a candidate planning your move, this guide walks you through what matters—without the legalese.
Quick note: Rules and fees change. Always double‑check details on uscis.gov before filing.
What the H‑1B is (and isn’t)
- It’s a temporary, employer‑sponsored visa for specialty occupations.
- It allows “dual intent,” meaning you can pursue a green card while on H‑1B.
- It’s not self‑sponsored. A U.S. employer must file for you.
- Common H‑1B subtypes exist for DOD researchers and fashion models, but most filings are “specialty occupation” roles.
Who qualifies
Employer
- Offers a specialty occupation role that normally requires at least a relevant bachelor’s degree.
- Pays the required wage (at least the higher of prevailing wage or the company’s actual wage for similar roles).
- Files a Labor Condition Application (LCA) with the Department of Labor and complies with posting and record‑keeping rules.
- Maintains a real employer‑employee relationship (W‑2 employment, supervision/control, etc.).
Job/candidate
- The job duties are tied to a specific degree/field (e.g., software engineering, accounting, architecture).
- The worker has a relevant U.S. bachelor’s degree or foreign equivalent. Equivalency can sometimes be shown through a mix of education and progressive experience via a credential evaluation.
Cap vs. cap‑exempt
- Most H‑1B petitions are “cap‑subject” and limited by an annual quota: 65,000 regular cap + 20,000 for U.S. master’s or higher.
- “Cap‑exempt” employers (universities, nonprofit entities related to them, and nonprofit/government research orgs) can file year‑round without the lottery.
How the H‑1B process works
For cap‑subject roles (the lottery route)
- Online registration: Employers submit beneficiary details during a short USCIS registration window (typically in early spring). If selected, USCIS invites a full petition.
- LCA: Employer files an LCA with the DOL and posts the notice. Certification usually takes about a week (timing varies).
- Petition filing: Employer files Form I‑129 with supporting evidence (degree, evaluations, job description, company control, etc.). Premium processing is optional for faster adjudication.
- Approval and start: If approved for “change of status” inside the U.S., the worker can switch status on the approval start date (often October 1 for cap cases). If outside the U.S., the worker applies for a visa stamp at a consulate, then enters and starts work.
- F‑1 “cap‑gap”: Students on OPT/STEM OPT may get a “cap‑gap” extension to bridge them to the H‑1B start if the petition is timely filed.
For cap‑exempt employers
- Skip registration. File the LCA and H‑1B petition any time of year.
Timeline basics
- Registration to filing: weeks to a few months depending on selection and prep.
- LCA: roughly a week to certify after filing.
- Petition adjudication: ranges from weeks to months; premium processing speeds it up.
- Visa stamping and travel: add time for consular appointments and security checks.
- Earliest cap‑subject start is usually October 1 of the fiscal year.
Costs and who pays
Typical cost buckets
- USCIS filing fees for Form I‑129 (varies by case and can change).
- ACWIA training fee (employer‑paid).
- Fraud prevention and detection fee (employer‑paid).
- Optional premium processing fee (often employer‑paid).
- Attorney fees (varies).
- Additional fee may apply to certain large employers heavily reliant on H‑1B/L‑1.
Important: U.S. law requires employers to pay certain mandatory H‑1B fees and not claw them back or shift them to the worker in a way that drops pay below the required wage.
Validity, extensions, and changes
- Validity: Usually up to 3 years initially; extensions generally up to a 6‑year total.
- Beyond 6 years: Possible if a green card process is underway (e.g., approved I‑140 or PERM/I‑140 pending long enough under AC21 rules).
- Recapture: Time spent outside the U.S. can often be “recaptured” and added back to H‑1B time.
- Portability (change of employer): In many cases, an H‑1B worker can start for a new employer once USCIS receives the new petition, if they’ve maintained status.
- Amendments: Required when there’s a material change (e.g., significant duty changes or a new worksite outside the original area). Remote/hybrid is allowed—but make sure the LCA covers all worksites.
- Concurrent H‑1Bs: Part‑time or second employer arrangements are possible with separate approved petitions.
Travel and visa stamping
- If you’re outside the U.S., you’ll generally need an H‑1B visa stamp to enter (Canadians are visa‑exempt).
- Change‑of‑status approvals inside the U.S. can be “reset” if you travel before they take effect—plan carefully.
- Take to the consulate: approval notice (I‑797), certified LCA, support letters, degree evidence, client letters for third‑party sites, and DS‑160 confirmation.
Compliance essentials for employers
- Pay the required wage—no unpaid “benching” for lack of work.
- Post the LCA and maintain a Public Access File (PAF).
- Document a bona fide employer‑employee relationship (right to hire, pay, fire, supervise).
- Withdraw the petition if employment ends and offer return transportation for early termination.
- Expect possible site visits.
Common mistakes to avoid
- Vague job descriptions that don’t tie to a specific degree field.
- Degree that doesn’t align with the role (fixable with detailed duties/evaluations in some cases).
- Ignoring remote/hybrid compliance (LCAs for each location).
- Missing filing windows or consular lead times.
- Asking the worker to cover employer‑required fees.
Alternatives if you’re not selected (or not eligible)
- Cap‑exempt H‑1B (universities, related nonprofits, research orgs).
- O‑1 (extraordinary ability).
- L‑1 (intracompany transferees).
- TN (Canada/Mexico), E‑3 (Australia), H‑1B1 (Chile/Singapore).
- STEM OPT for F‑1 grads, J‑1 research/training in some cases.
- E‑2 investor or startup options where eligible.
Quick FAQs
Q: Can I file my own H‑1B?
A: No. A U.S. employer must sponsor and file the petition.
Q: What are my chances in the lottery?
A: It varies year to year based on registrations vs. available slots. No one can promise odds.
Q: Can I work remotely on H‑1B?
A: Yes, if the LCA covers the work location(s) and notice/record‑keeping rules are followed. An amendment may be required for moves outside the original metro area.
Q: What if I’m laid off?
A: There’s generally a 60‑day grace period (or until I‑94 expiry, whichever is shorter) to find a new employer, change status, or depart.
Q: Can my spouse work?
A: H‑4 spouses can apply for an EAD if the H‑1B worker has an approved I‑140 or certain AC21‑based H‑1B extensions. Some timely H‑4 EAD renewals may get automatic extensions—check USCIS.
Q: How long does H‑1B take?
A: From registration to start date can be several months. Premium processing speeds the USCIS part, but doesn’t skip steps like LCA or consular appointments.
Q: Do I need a degree exactly matching my job title?
A: The degree should align with the job’s specialized duties. Detailed duty mapping and, if needed, a credential evaluation can help show equivalency.
Handy glossary (short and sweet)
- LCA: Labor Condition Application filed with DOL; sets wage and worksite info.
- Prevailing wage: Minimum local wage for the role/level used on the LCA.
- Cap‑exempt: Employers that can file H‑1Bs year‑round without the lottery.
- I‑129: Main H‑1B petition form to USCIS.
- I‑797: USCIS approval notice.
- DS‑160: Online application for the visa stamp at a consulate.
Official resources
- USCIS H‑1B hub: uscis.gov/h-1b
- USCIS H‑1B Specialty Occupations page: uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations
- DOL Foreign Labor Application Gateway (LCA): flag.dol.gov
- Wage data lookups: flcdatacenter.com
This guide is general information, not legal advice. If your facts are complex (third‑party placement, multiple worksites, degree mismatch, layoffs), talk to an experienced immigration attorney. If you want, tell me your situation and I’ll help you map next steps.
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