H-1B Specialty Occupation Work Visas: An Overview


The H-1B visa is a common initial work visa, often following from a student visa to future green card. However, it has exacting skill requirements and strict timing deadlines. Learn more below.

The Applicant

H-1B petitions, like most employment-based visa petitions, must be filed by a U.S. business entity (the “Petitioner”) seeking to employ a foreign worker (the “Beneficiary”). The U.S. business entity must be registered with the U.S. Internal Revenue Service tax authorities, and must sign up with the U.S. Department of Labor. For H-1B lottery season, the Petitioner must also pre-register online with the U.S. Citizenship and Immigration Services (USCIS) in March.

The Beneficiary

An H-1B petition benefits a foreign worker who has the skills to fulfill a “specialty occupation” job position – meaning a position which at a minimum requires skills typically associated with a bachelor’s degree.

The Process

A typical robust H-1B petition typically takes around three weeks to prepare and file, depending on employer responsiveness. Aside from discussions with the attorney’s office, the following hard deadlines apply to most H-1Bs:

  • Employer must register with DOL (2-3 business days)

  • Employer must submit Labor Conditional Application DOL ETA Form 9035 and have it certified by DOL (10 business days)

  • Employer must register with USCIS online (2-3 business days).

  • USCIS will conduct its lottery selections in late March and notify those selected to move ahead.

  • Selected employers must file H-1B petition Form I-129H during early April, if subject to the H-1B Cap.

  • If approved, H-1B is typically valid starting Oct. 1 of the same year in which it was filed. H-1B duration is typically from 1 to 3 years, and may be renewed for a total not to exceed 6 years.

The H-1B Cap Lottery

Most first-time H-1B visas are subject to a hard limit (“cap”) of 85,000: a general selection of 65,000, plus a special selection of 20,000 exclusively for holders of U.S. master’s degrees. Some employers are exempt from the H-1B visa cap, including those positions with higher education institutions, non-profit organizations associated with a higher education institution, and non-profit research or government organizations.

Recent Regulatory Changes and Considerations

The previous White House targeted the H-1B process for fraud prevention, and introduced several new limitations. Several of these have been overturned or rescinded by the current Biden Administration.

  • Computer Programmer and similar job positions were subject to increased scrutiny;

  • Positions in lower wage levels faced increased challenges during adjudication;

  • Positions located at third-party worksites faced increased scrutiny, including requests to show sufficient work orders to sustain the foreigner’s placement there for the entire requested time (i.e. up to 3 years of proof of future work orders);

  • Biden’s Administration reversed the Trump-era rules requiring higher minimum wages for foreign workers.

Pathway to a Green Card

The H-1B is usually approved for 1 to 3 years, and may be renewed, to a maximum of 6 years. However, the H-1B status itself does not result in Lawful Permanent Resident status (a “green card”), but it is often used as an initial stage to prepare the foreign worker for one.

Often, a U.S. employer who is pleased with their H-1B worker’s performance can also file an EB-2 or EB-3, which are immigrant green card petitions for an employee. These future plans may seem distant, but wise employers should take these EB-2/EB-3 plans into account even as they prepare the initial H-1B, because these separate petitions should present consistent facts. Additionally, the EB-2 and EB-3 petitions often introduce additional requirements above and beyond the H-1B work arrangements.

Get your H-1B filed with accuracy and security, and meet the Cap Lottery deadline with confidence. Contact Us to set up a consultation.