H-1B Visa: Requirements, Cap, Fees, and Employer Duties

The H-1B visa is a temporary work visa that lets a U.S. employer hire a foreign professional for a job that requires specialized knowledge and at least a bachelor’s degree in a directly related field. To meet H-1B visa requirements, the position must qualify as a specialty occupation, the worker must hold the right degree or its equivalent, and the employer must commit to paying at least the prevailing wage. Most new petitions also have to clear an annual lottery, because federal law caps approvals at 65,000 per fiscal year, with an additional 20,000 reserved for workers holding a U.S. master’s degree or higher.¹

What Counts as a Specialty Occupation

Federal law defines a specialty occupation as one requiring the practical application of highly specialized knowledge, with a bachelor’s degree in a specific field as the minimum entry requirement.¹ Software engineering, data science, architecture, and biomedical research are typical fits. A generic business degree usually will not do unless the employer can show the role itself demands that exact academic background.

Federal regulations give employers four ways to prove a position qualifies. A bachelor’s in the specific specialty is the normal minimum for that occupation across the industry; similar companies in the field require the same degree; the employer itself has always required the degree for the role; or the duties are so specialized that the knowledge to perform them is associated with that degree.² Meeting one is enough, but USCIS scrutinizes the connection between the degree and the specific job duties.

What the Worker Needs

The worker must hold a U.S. bachelor’s degree or a foreign equivalent in a field that directly relates to the job. Foreign degrees need an official credential evaluation confirming they match American standards. Experience can substitute for formal education, but only if the worker can demonstrate progressively responsible positions showing equivalent expertise.¹ Any state-level professional license required for the occupation must also be in place before the worker can begin work.

The Annual Cap and Lottery

Because most petitions are subject to the 65,000-plus-20,000 cap, the employer cannot simply file whenever a hire is ready.³ They first go through an electronic registration, which typically opens in March for the fiscal year beginning October 1. Each registration covers one worker and costs $215.⁴

When registrations exceed the available slots, USCIS runs a weighted random selection. Selected registrants get a 90-day window to file the full petition.⁵ Everyone else waits until next year’s cycle. There is no carryover waitlist.

Employers That Skip the Lottery

Some employers are cap-exempt and can file H-1B petitions year-round. Federal law exempts petitions filed by or on behalf of workers employed at institutions of higher education, affiliated nonprofit organizations, nonprofit research organizations, and government research organizations.¹ The exemption also reaches workers whose direct employer is a for-profit company but who are physically employed on the premises of a qualifying institution for most of their time. A worker in a cap-exempt job can also hold a concurrent cap-subject position with another employer, as long as the cap-exempt job continues.⁶

What the Employer Must Promise

Before filing the H-1B petition, the employer must submit a Labor Condition Application to the Department of Labor. On that form the employer commits, on the record, to paying the foreign worker at least the prevailing wage for the occupation in the geographic area where the work will be performed.⁷ The prevailing wage is based on local labor market data and the position’s skill level. The employer also attests that hiring the foreign worker will not worsen conditions for U.S. employees in similar roles, and must maintain a public disclosure file documenting compliance.

These promises are enforced. The Department of Labor can impose fines for standard violations, higher fines and program debarment for willful violations, and the steepest penalties when a willful violation results in the displacement of a U.S. worker within 90 days of the H-1B filing.⁸

No Benching

An employer cannot bring in an H-1B worker and then stop paying when projects dry up. If there is no work to assign, the worker still gets the full required wage. The obligation covers any nonproductive time caused by business conditions, including gaps between projects, delays in obtaining a license, or time spent studying for a required exam. The only exception is time the worker voluntarily takes off for personal reasons. Pay must start no later than 30 days after the worker first enters the U.S. under the petition, or 60 days after the approval date for workers already in the country, and it ends only on a genuine termination reported to USCIS.⁹

Return Transportation on Early Termination

If the employer terminates an H-1B worker before the authorized stay expires, the employer must pay the reasonable cost of transporting the worker back to their last country of residence.¹⁰ This applies regardless of the reason for termination. A worker who quits voluntarily is not covered.

Fees and the 2025 Proclamation

H-1B filings involve stacked government fees, most of which the employer must pay rather than pass to the worker. The main ones:

Electronic registration fee of $215 per beneficiary, paid during the lottery registration window.⁴
ACWIA training fee of $750 for employers with 25 or fewer full-time U.S. employees, or $1,500 for larger employers, funding domestic worker training programs.¹¹
Fraud Prevention and Detection fee of $500 on initial petitions and employer changes.¹¹
Asylum Program Fee of $600 for employers with more than 25 full-time equivalent employees, $300 for smaller employers, and $0 for nonprofits.¹¹
Public Law 114-113 fee, which applies to employers with 50 or more U.S. employees when more than half hold H-1B or L-1 status.¹¹
Optional premium processing at $2,965 as of March 1, 2026, for a guaranteed response within 15 business days.¹²

A base Form I-129 filing fee also applies; the current amount is on the USCIS fee schedule. Legal fees for preparing the petition typically run from $2,500 to $7,500 depending on complexity.

A September 2025 presidential proclamation added a $100,000 payment requirement for new H-1B petitions filed on or after September 21, 2025, as a condition of eligibility.¹³ Because the requirement comes from a proclamation rather than legislation, its status could shift through further executive action or a court challenge. Confirm the current position with USCIS or immigration counsel before filing.

Filing and Approval

Once a registration is selected, the employer files Form I-129, Petition for a Nonimmigrant Worker, within the 90-day window on the selection notice.⁵ Miss the deadline and the selection is lost. The petition package includes a certified LCA, the employment offer, documentation of the worker’s qualifications (with a credential evaluation for foreign degrees), a detailed description of the duties, and evidence that the employer can pay the required wage.

USCIS issues a Form I-797C receipt notice when the petition is in the queue.¹⁴ Standard processing can take months. If documentation is incomplete or ambiguous, USCIS issues a Request for Evidence, which adds weeks or more. An approval comes as a Form I-797 Approval Notice.¹⁵ Employers who need faster answers can pay for premium processing.

How Long H-1B Status Lasts

Initial H-1B validity runs up to three years, with one extension available for a total of six. After six years, the worker generally must leave the country for at least a year before becoming eligible again. Two exceptions matter for anyone pursuing a green card. If at least 365 days have passed since the employer filed a labor certification or an I-140 immigrant petition on the worker’s behalf, the H-1B can be extended in one-year increments beyond the six-year limit. If the worker has an approved I-140 but is waiting for an immigrant visa number, extensions come in three-year increments.¹⁶ These matter enormously for workers from countries with long green card backlogs.

Time spent physically outside the United States also does not count against the six-year clock, so long as each absence exceeds 24 hours. Workers can recapture those periods, but the employer must specifically request it and document the time abroad.¹⁶

Dual Intent and the Green Card Path

Unlike most temporary visa categories, the H-1B allows dual intent. The worker can hold H-1B status and pursue a green card at the same time. Federal regulations state that an approved labor certification or the filing of an immigrant petition cannot be used as a basis for denying an H-1B petition, extension, or admission.² Holders of many other work visas do face that risk. The practical result is that an employer can sponsor an H-1B worker for permanent residency without either process undermining the other.

Changing Employers and Losing a Job

H-1B workers are not tied to a single employer. Under portability, a worker can start with a new employer as soon as that employer files a valid petition on their behalf, without waiting for approval.¹ The worker must have been lawfully admitted, must not have worked without authorization, and the new petition must be filed before the current authorized stay expires. The new employer also needs a certified LCA covering the new role.¹⁷ If the new petition is ultimately denied, work authorization with that employer ends immediately.

Losing an H-1B job does not force an immediate departure. Regulations provide a grace period of up to 60 consecutive days, or until the end of the authorized stay, whichever comes first. The clock starts the day after the last paid day of work, and it applies whether the separation was voluntary or not. During those 60 days the worker is considered to be maintaining status, but cannot work unless a new employer files through portability. The worker can also use the window to change to another status, such as B-1/B-2 visitor. Leaving the country during the grace period ends it, so travel needs careful timing. One 60-day grace period is allowed per authorized petition validity period.¹⁸

Family: H-4 Spouses and Children

Spouses and unmarried children under 21 of H-1B workers can enter on H-4 dependent status. H-4 dependents generally cannot work, with one significant exception. Certain H-4 spouses can apply for an Employment Authorization Document by filing Form I-765. To qualify, the H-1B spouse must either hold an approved I-140 or have been granted H-1B status beyond the normal six-year limit under the green card extension provisions. The EAD’s validity matches the H-4 status period, and renewal applications can be filed up to 180 days before expiration.¹⁹ Because renewal processing has historically created gaps in work authorization, filing at the earliest date the window allows is the standard practice.

1
Office of the Law Revision Counsel. 8 USC 1184 – Admission of Nonimmigrants
2
eCFR. 8 CFR 214.2 – Special Requirements for Admission, Extension, and Maintenance of Status
3
U.S. Citizenship and Immigration Services. H-1B Cap Season
4
U.S. Citizenship and Immigration Services. H-1B Electronic Registration Process
5
U.S. Citizenship and Immigration Services. H-1B Electronic Registration Frequently Asked Questions
6
U.S. Citizenship and Immigration Services. H-1B Specialty Occupations
7
eCFR. 20 CFR 655.730 – What Is the Process for Filing a Labor Condition Application
8
eCFR. 20 CFR Part 655 Subpart I – Enforcement of H-1B Labor Condition Applications
9
U.S. Department of Labor. Fact Sheet 62I – Must an H-1B Employer Pay for Nonproductive Time
10
eCFR. 8 CFR 214.2 – Special Requirements for Admission, Extension, and Maintenance of Status
11
U.S. Citizenship and Immigration Services. H and L Filing Fees for Form I-129, Petition for a Nonimmigrant Worker
12
Federal Register. Adjustment to Premium Processing Fees
13
U.S. Citizenship and Immigration Services. I-129, Petition for a Nonimmigrant Worker
14
U.S. Citizenship and Immigration Services. Form I-797C, Notice of Action
15
U.S. Citizenship and Immigration Services. Form I-797 – Types and Functions
16
U.S. Citizenship and Immigration Services. FAQs for Individuals in H-1B Nonimmigrant Status
17
U.S. Department of Labor. Fact Sheet 62W – What Is Portability and to Whom Does It Apply
18
U.S. Citizenship and Immigration Services. Options for Nonimmigrant Workers Following Termination of Employment
19
U.S. Citizenship and Immigration Services. Employment Authorization for Certain H-4 Dependent Spouses