8 CFR 214.2(h): H-1B Cap, Lottery, and Portability Rules

The federal regulation at 8 CFR 214.2(h) sets the rules for how U.S. employers hire temporary foreign workers under the H visa classifications, and its H-1B specialty occupation provisions govern who qualifies, how employers petition, how long workers can stay, and what happens when a job ends. For fiscal year 2027, with registrations filed in early 2026, the H-1B rules under 8 CFR 214.2(h) shifted to a weighted lottery that favors higher-wage positions. The 2025 modernization rule also tightened several definitions and codified USCIS site-visit authority. What follows walks through the parts of the regulation employers and workers actually run into.

What Counts as a Specialty Occupation

A specialty occupation is one that requires both the theoretical and practical application of highly specialized knowledge and at least a bachelor’s degree in a directly related field as the minimum for entry.¹ Engineering, computer science, accounting, architecture, and medicine are typical examples. A preference for a degreed candidate is not enough; the role itself has to demand that level of specialized knowledge.

A position meets the standard by satisfying at least one of four regulatory criteria:

A bachelor’s or higher degree in a specific field is the normal minimum for the position.
The degree requirement is common across the industry for similar positions at comparable organizations.
The duties are so complex or unique that only someone with the relevant degree could perform them.
The duties are so specialized that the knowledge needed is typically acquired through a bachelor’s or higher degree program.

The 2025 modernization rule, effective January 2025, clarified two points. “Normally” does not mean “always,” so a position can qualify even if some people in the role lack a degree, as long as the degree is the typical requirement. And an employer can accept a range of qualifying degree fields, but every accepted field must be directly related to the actual job duties.² A software engineering role that accepts computer science, software engineering, or electrical engineering degrees meets that standard. A role that accepts any bachelor’s degree does not.

Who Qualifies as the Worker

The beneficiary must hold the required U.S. bachelor’s or higher degree, its foreign equivalent, or an unrestricted state license if the occupation requires one.¹ When a formal degree is missing, equivalence can be shown through a combination of education, specialized training, and progressively responsible work experience. The regulation treats three years of specialized work experience as the equivalent of one year of college-level education.³ Claiming a four-year degree equivalency through work alone therefore requires 12 years of progressively responsible experience in the field.

The employer files the evidence of these qualifications: transcripts, degree evaluations for foreign credentials, professional certifications, or documentation of relevant work experience.

The Annual Cap and the New Weighted Lottery

Congress capped the regular H-1B allocation at 65,000 per fiscal year, with another 20,000 reserved for beneficiaries holding a U.S. master’s degree or higher.⁴ Demand routinely exceeds those numbers, so USCIS runs an electronic registration followed by a selection when registrations outnumber slots.

Employers submit a registration for each beneficiary during a designated window. For the FY 2027 cap, the window ran March 4 through March 19, 2026, with a $215 fee per registration.⁵ Selection is beneficiary-centric: a person registered by multiple employers gets one chance in the lottery, not one per employer.

Starting with FY 2027, USCIS replaced the random lottery with a weighted process that favors higher-paid positions. Each registration is assigned a wage level based on the Occupational Employment and Wage Statistics for the occupation and geographic area. Level IV registrations enter the pool four times, level III three times, level II twice, and level I once. Each beneficiary still counts only once toward the numerical cap, no matter how many times they appear in the pool.⁴ Entry-level positions face considerably longer odds than senior roles under this system.

Not every petition counts against the cap. Petitions filed by or for workers employed at institutions of higher education, nonprofit research organizations, and governmental research organizations are exempt. Nonprofits affiliated with a university also qualify when they share ownership, are operated by the institution, or have a formal written affiliation agreement that directly contributes to the university’s research or education mission. A worker doesn’t have to be directly employed by the qualifying institution: if at least half of their work time is spent performing duties that further the institution’s core research or educational mission, the exemption applies.⁶

What Sponsorship Costs

H-1B sponsorship carries several mandatory fees, and employers cannot pass most of them on to the worker.

H-1B registration fee: $215 per beneficiary, paid during the electronic registration window.⁵
Base I-129 filing fee, listed on the USCIS Fee Schedule (Form G-1055).
ACWIA training fee: $750 for employers with 25 or fewer full-time equivalent employees, $1,500 for larger employers. It applies to initial petitions and transfers.
Fraud Prevention and Detection fee: $500 on initial petitions and employer changes.
Asylum Program Fee: $600 for employers with more than 25 FTEs, $300 for smaller employers, and $0 for nonprofits.⁷
Public Law 114-113 fee: an additional $4,000 for employers with 50 or more U.S. employees where more than half hold H-1B or L-1 status. It applies to initial petitions and employer changes and is effective through September 30, 2027.⁸

Optional premium processing, which guarantees action on the petition within 15 business days, adds its own fee on top.⁹ Government fees alone commonly run between $2,500 and $5,000 for a mid-size employer sponsoring a single worker, before legal costs.

The Labor Condition Application

Before filing the petition, the employer must obtain a certified Labor Condition Application from the Department of Labor. On the LCA the employer attests that the worker will be paid at least the higher of two benchmarks: the actual wage paid to other employees with similar qualifications in the same role, or the prevailing wage for the occupation in the geographic area where the work will be performed.¹⁰ The employer also attests that employing the worker will not adversely affect the working conditions of similarly situated U.S. workers.

The employer must maintain a public access file containing the LCA, pay rate documentation, a description of the actual wage system, the prevailing wage source, proof that the notice requirement was met, and a summary of benefits offered to both U.S. and H-1B workers. The file must be available within one working day of filing the LCA, and any member of the public can request access.¹¹ One often-overlooked point: if the worker is not performing work because of an employer decision, such as a lack of assignments, the employer still must pay the full required wage.¹⁰

Filing the I-129 Petition

After the beneficiary is selected in the lottery (or at any time for cap-exempt positions), the employer files Form I-129, Petition for Nonimmigrant Worker. The petition includes the certified LCA, evidence of the beneficiary’s qualifications, a detailed description of the position, and the applicable fees.

The 2025 modernization rule added a requirement that the petitioning employer have a legal presence in the United States and be amenable to service of process, and codified USCIS’s authority to conduct site visits. Refusing to cooperate with a site visit can result in denial or revocation.²

When the beneficiary owns a controlling interest in the petitioning company (more than 50 percent ownership or majority voting rights), USCIS limits the initial petition and first extension to 18 months each, rather than the standard three years.²

How Long a Worker Can Stay

Initial admission runs up to three years, with extensions available for another three, for a standard maximum of six.¹² After six years, the worker generally must leave the United States for at least one year before being eligible for a new H-1B period. Two exceptions under the American Competitiveness in the 21st Century Act (AC21) let workers in the green card pipeline stay longer.

One-year increments under AC21 Section 106: available if the employer filed a labor certification application or an I-140 immigrant visa petition at least 365 days before the six-year limit expires. Extensions continue in one-year increments while the green card process remains pending.¹³
Three-year increments under AC21 Section 104: available if the worker has an approved I-140 but cannot file for a green card because of per-country visa backlogs.¹³

These extensions can continue indefinitely so long as the green card application stays pending. For workers from countries with long employment-based backlogs, AC21 extensions are effectively the only way to maintain lawful work status while waiting.

Changing Employers: Portability

An H-1B worker can begin employment with a new employer as soon as that employer files a valid, non-frivolous H-1B petition on their behalf, or as of the requested start date, whichever is later. Waiting for USCIS approval is not required.¹⁴

Three conditions have to be met: the worker was lawfully admitted in H-1B status, the new petition was filed before the current authorized stay expired, and the worker has not worked without authorization since the last admission.¹⁴ If the new petition is ultimately denied, authorization to work for the new employer ends immediately. The gap between filing and denial can run months, so anyone using portability should plan for that risk before resigning.

When an Amended Petition Is Required

An employer must file an amended or new H-1B petition whenever there is a material change to the terms and conditions of employment in the original approved petition. The amended petition must include a new or current certified LCA.³ Moving the worker to a location in a different geographic area that would require a new LCA is automatically a material change, and the amended petition must be filed before the worker starts at the new site.

Not every change triggers this. Moving within the same area of intended employment listed on the existing LCA does not, and neither do short-term placements at other worksites.³ If an amended petition is denied, the worker can continue at the original location under the terms of the previously approved petition.

When Employment Ends

A worker who loses their job does not have to leave immediately. The regulation provides up to 60 consecutive days, or until the end of the current authorized period if that comes first, to remain in the country after employment ceases. This grace period is available once per authorized validity period.¹⁵ During the grace period the worker cannot work unless another employer files a new petition under portability, but the window can be used to find a new sponsor, change to another visa status, or prepare to depart. USCIS retains discretion to shorten or eliminate the period.

If the employer dismisses the worker before the authorized period ends, the employer is liable for the reasonable cost of return transportation to the worker’s home country. This does not apply when the worker resigns, and it does not cover transportation for dependents or personal possessions.⁶ A worker who believes the employer has not complied can notify the USCIS service center that adjudicated the original petition.

H-4 Dependents and Work Authorization

Spouses and unmarried children under 21 can accompany the H-1B worker in H-4 status. H-4 dependents cannot work by default, but certain H-4 spouses can apply for an Employment Authorization Document. Eligibility ties to the H-1B worker’s progress toward a green card: the H-1B spouse must be the beneficiary of an approved I-140, or must have received H-1B status beyond the six-year limit under AC21. The H-4 spouse must be maintaining valid H-4 status at the time of filing.

Processing times for H-4 EAD applications have historically run six months or more. Filing an extension before the current EAD expires may provide an automatic extension that prevents a work-authorization gap while the renewal is pending.

Other H Categories Under the Same Regulation

8 CFR 214.2(h) also governs H-2A (temporary agricultural workers)¹⁶, H-2B (temporary non-agricultural workers)¹⁷, and H-3 (trainees)¹⁸. Each has its own numerical limits, labor certification process, and duration rules separate from the H-1B framework, and none of the H-1B-specific rules above (the cap lottery, LCA wage attestation, AC21 extensions, H-4 EADs) carry over to those categories.

1
U.S. Citizenship and Immigration Services. H-1B Specialty Occupations
2
Federal Register. Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements
3
eCFR. 8 CFR 214.2 – Special Requirements for Admission, Extension, and Maintenance of Status
4
U.S. Citizenship and Immigration Services. H-1B Cap Season
5
U.S. Citizenship and Immigration Services. H-1B Electronic Registration Process
6
eCFR. 8 CFR Part 214 – Nonimmigrant Classes
7
U.S. Citizenship and Immigration Services. H and L Filing Fees for Form I-129, Petition for a Nonimmigrant Worker
8
U.S. Citizenship and Immigration Services. Fee Increase for Certain H-1B and L-1 Petitions (Public Law 114-113)
9
U.S. Citizenship and Immigration Services. How Do I Request Premium Processing?
10
eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages?
11
U.S. Department of Labor, Wage and Hour Division. Fact Sheet 62F – What Records Must an H-1B Employer Make Available to the Public?
12
U.S. Citizenship and Immigration Services. FAQs for Individuals in H-1B Nonimmigrant Status
13
U.S. Citizenship and Immigration Services. AC21 Memorandum
14
eCFR. 8 CFR 214.2 – Special Requirements for Admission, Extension, and Maintenance of Status
15
eCFR. 8 CFR 214.1 – Requirements for Admission, Extension, and Maintenance of Status
16
U.S. Citizenship and Immigration Services. H-2A Temporary Agricultural Workers
17
U.S. Citizenship and Immigration Services. H-2B Temporary Non-Agricultural Workers
18
U.S. Citizenship and Immigration Services. H-3 Nonimmigrant Trainee or Special Education Exchange Visitor