What Is the H-1B Visa: Requirements, Cap, and Employer Rules

The H-1B visa is a temporary U.S. work visa that lets American employers hire foreign professionals for jobs that require specialized knowledge and at least a bachelor’s degree. Congress caps new H-1B visas at 65,000 per year, with another 20,000 reserved for workers holding a master’s or higher degree from a U.S. university.¹ Demand routinely runs well above those numbers, so most applicants have to clear a lottery before a petition can even be filed. Once approved, the visa lasts up to six years in most cases, with extensions available for workers moving through the green card process.

What Counts as a Specialty Occupation

The whole visa is built around one concept: the job has to be a “specialty occupation.” That means the position requires a bachelor’s degree or higher in a specific field directly related to the work.² A general degree with no particular major is not enough. If the role could be filled by someone with any bachelor’s degree regardless of subject, it probably will not qualify.³

USCIS looks at whether the position meets at least one of four criteria: a bachelor’s or higher degree in the specific field is the normal industry minimum for the role; similar organizations in the same industry typically require that degree; the petitioning employer has always required such a degree for the position; or the duties are so specialized that the knowledge needed is normally associated with that degree.³ Common qualifying fields include engineering, computer science, medicine, accounting, architecture, and mathematics.

Who Qualifies as the Worker

The worker, called the beneficiary in immigration paperwork, must hold a U.S. bachelor’s degree or a foreign degree evaluated as equivalent in the specific field the job requires.² A credential evaluation from a recognized service is normally needed when the degree comes from a foreign university. The field also has to match. A marketing degree will not support a petition for a software engineering role.

Workers who do not hold a formal degree can sometimes qualify by substituting professional experience. The standard conversion treats three years of progressively responsible work in the specialty as the equivalent of one year of college education. Under that formula, someone with 12 years of relevant experience could meet the bachelor’s requirement. A credential evaluation agency has to document the equivalency, and USCIS scrutinizes these cases closely. This is where a lot of petitions run into trouble, so documentation matters.

The Employer’s Role

The H-1B is employer-sponsored, which means you cannot file for yourself. A U.S. company has to petition for you, and it has to show a genuine employer-employee relationship, meaning it has the authority to hire, pay, supervise, and fire you.⁴ This gets complicated in staffing and consulting arrangements where the worker sits at a client site. USCIS wants to see that the petitioning employer, not the end client, actually controls the work.

Prevailing Wage

Every H-1B employer must pay the worker at least the prevailing wage for the occupation in the area where the work will be performed, or the actual wage the employer pays other employees with similar experience and qualifications, whichever is higher.⁵ The prevailing wage reflects average compensation for similarly employed workers in the same geographic area. Employers can get a determination from the Department of Labor’s National Prevailing Wage Center, use an independent wage survey, or rely on another legitimate wage source. The rule exists to keep companies from using H-1B workers to undercut domestic salaries.

No Benching

Employers cannot stop paying an H-1B worker just because there is no project available. Federal regulations require the employer to pay the wage listed on the Labor Condition Application for any time the worker is in a nonproductive status caused by business conditions. If a client engagement ends or business slows, the wage still has to be paid. Penalties include back pay for every unpaid day, fines of up to $9,624 per violation, and potential disqualification from filing H-1B or immigrant petitions for at least two years.

The narrow exception is when the worker voluntarily requests time off for personal reasons and the leave is not covered by the employer’s benefit plan or laws like the FMLA. Labeling an involuntary gap as “voluntary leave” does not satisfy investigators, who look at what actually happened rather than how it was labeled.

Return Transportation if Terminated

If an employer fires an H-1B worker before the authorized period ends, federal law requires the employer to pay reasonable transportation back to the worker’s last foreign residence.⁶ This applies regardless of the reason for dismissal, including termination for cause. The employer is off the hook only when the worker resigns.

The Annual Cap and Lottery

The 65,000 regular cap and 20,000 advanced-degree exemption almost always come up short of demand. When registrations exceed available slots, USCIS runs a selection process to decide which petitions can be filed.¹

It starts with electronic registration. For FY 2027, with employment starting October 1, 2026, the registration window opened March 4 and ran through March 19, 2026.⁷ Employers pay a $215 registration fee per beneficiary to enter the pool.⁸

Each registration must include the beneficiary’s valid passport or travel document. That data is used to make sure each person has only one entry per petitioner. If an employer submits duplicate registrations for the same worker, all of that employer’s registrations for that beneficiary are invalidated.⁸ Different employers can each register the same worker, but a single employer cannot flood the lottery with duplicate entries.

Starting with the FY 2027 cap season, USCIS implemented a weighted selection process that favors higher-wage registrations. Registrations are ranked based on how the offered salary compares with the prevailing wage levels for the relevant occupation and location, and workers offered higher wages relative to their field’s pay scale have a better statistical chance of being selected.⁸ That is a real shift from prior years, when every properly submitted registration had equal odds regardless of salary.

Cap-Exempt Employers

Not every H-1B petition has to go through the lottery. Federal law exempts petitions filed by four categories of employers:⁶

Institutions of higher education, meaning universities and colleges.
Nonprofits related to or affiliated with a university or college.
Nonprofit research organizations whose primary mission is research.
Governmental research organizations at the federal, state, or local level.

Cap-exempt employers can file H-1B petitions any time during the year without touching the registration or lottery process. A worker who later moves from a cap-exempt organization to a cap-subject employer would need to go through the lottery at that point, unless they had already been counted against the cap.

Filing the Petition

Before filing the H-1B petition itself, the employer has to get a certified Labor Condition Application through the Department of Labor’s FLAG system using Form ETA-9035.⁹ The LCA is a set of attestations: the employer will pay at least the prevailing wage, hiring the H-1B worker will not adversely affect working conditions for similar employees, there is no strike or lockout at the worksite, and current workers have been notified of the filing. It also records the job title, work location, and offered wage. It must be certified before the main petition goes to USCIS.

The employer then files Form I-129, Petition for a Nonimmigrant Worker, with the H Classification Supplement.¹⁰ The package includes the certified LCA, a detailed description of duties, evidence that the position qualifies as a specialty occupation, and proof the beneficiary holds the required degree or equivalent credentials. Transcripts, diplomas, credential evaluations, and a current passport are standard.

What It Costs

The base filing fee for Form I-129 is $780. Beyond that, most employers owe several additional fees:¹¹

ACWIA training fee of $750 for employers with 25 or fewer full-time employees, or $1,500 for larger employers.
Fraud prevention and detection fee of $500, required for initial petitions and change-of-employer petitions.
Asylum Program Fee of $600 for employers with more than 25 full-time equivalent employees, $300 for smaller employers, and $0 for nonprofits.

For a large employer filing an initial petition, the combined government fees alone can top $3,000 before attorney costs. The USCIS fee schedule is updated periodically, so it is worth confirming current amounts before filing.

Standard processing takes several months. Employers who need faster turnaround can file Form I-907, Request for Premium Processing Service, which guarantees USCIS action on the petition within a set timeframe. As of March 1, 2026, the premium processing fee for an H-1B petition filed on Form I-129 is $2,965.¹² Action can mean an approval, a denial, or a Request for Evidence, so paying for speed does not buy approval.

After Approval

For cap-subject petitions, the earliest employment start date is October 1, which lines up with the federal fiscal year. Workers already in the United States in a different valid status can have their status changed to H-1B upon approval. Workers abroad have to go through consular processing at a U.S. embassy or consulate in their home country, where they attend an interview and receive a physical visa stamp in their passport before entering the country. The consular officer can deny the visa independently of USCIS’s approval, so this step carries its own risk.

How Long You Can Stay

An initial H-1B approval covers up to three years. The employer can then file for an extension of up to three more years, for a maximum total stay of six.¹³ After six years, the worker generally has to leave the country for at least one year before becoming eligible for a new H-1B.

The American Competitiveness in the Twenty-First Century Act carved out two exceptions to the six-year cap for workers already in the green card pipeline. Under Section 106(a), if at least 365 days have passed since the filing of a labor certification application or an immigrant petition (Form I-140), and neither has been denied, the worker can receive one-year H-1B extensions until a final decision is made. Under Section 104(c), if the worker has an approved I-140 but cannot adjust status because of per-country visa backlogs, extensions are available in up to three-year increments until adjustment is decided.¹⁴

These provisions matter for workers from countries with heavy green card backlogs, like India and China, where the wait for an employment-based immigrant visa can stretch beyond a decade. Without AC21, many of these workers would be forced out of the country long before their priority date became current.

Changing Jobs and Losing a Job

H-1B workers are not permanently tied to the sponsoring employer. Under the portability provision, a worker can start a new job as soon as the new employer files a valid H-1B transfer petition. The worker does not have to wait for approval before beginning work, provided the petition is properly filed and not frivolous, and provided the worker was in valid H-1B status at the time of filing.¹³

If an H-1B worker loses their job, they get up to 60 consecutive days, or until the end of their authorized validity period, whichever comes first, to find a new employer willing to file a petition, change to a different visa status, or arrange to leave the country.¹⁵ No work is allowed during the grace period. It is available once per authorized validity period, and USCIS can shorten or eliminate it. Sixty days sounds like a lot until you factor in how long a new employer needs to prepare and file a petition.

Bringing Family on H-4

Spouses and unmarried children under 21 of H-1B workers can enter or stay in the United States under H-4 dependent status. H-4 holders can attend school but generally cannot work unless they get separate employment authorization.

Work authorization is open to a narrow group of H-4 spouses. The H-1B worker must either have an approved Form I-140 immigrant petition or hold H-1B status beyond the six-year limit under AC21.¹⁶ If either condition is met, the spouse can file Form I-765 for an Employment Authorization Document. H-4 status hangs on the H-1B worker keeping valid status, so when the principal’s status ends, the family members’ status ends too.

1
U.S. Citizenship and Immigration Services. H-1B Cap Season
2
U.S. Department of Labor. H-1B, H-1B1 and E-3 Specialty (Professional) Workers
3
eCFR. 8 CFR 214.2
4
U.S. Citizenship and Immigration Services. Questions and Answers Memoranda on Establishing the Employer-Employee Relationship in H-1B Petitions
5
U.S. Department of Labor. Prevailing Wage Information and Resources
6
Office of the Law Revision Counsel. 8 USC 1184 Admission of Nonimmigrants
7
U.S. Citizenship and Immigration Services. FY 2027 H-1B Cap Initial Registration Period Opens on March 4
8
U.S. Citizenship and Immigration Services. H-1B Electronic Registration Process
9
U.S. Department of Labor. Important Foreign Labor Certification H-1B, H-1B1 and E-3 Information
10
U.S. Citizenship and Immigration Services. I-129, Petition for a Nonimmigrant Worker
11
U.S. Citizenship and Immigration Services. H and L Filing Fees for Form I-129, Petition for a Nonimmigrant Worker
12
U.S. Citizenship and Immigration Services. USCIS to Increase Premium Processing Fees
13
U.S. Citizenship and Immigration Services. FAQs for Individuals in H-1B Nonimmigrant Status
14
U.S. Citizenship and Immigration Services. Supplemental Guidance Relating to Processing Forms I-140 and I-129 H-1B Petitions Affected by AC21
15
eCFR. 8 CFR 214.1 Requirements for Admission, Extension, and Maintenance of Status
16
U.S. Citizenship and Immigration Services. Employment Authorization for Certain H-4 Dependent Spouses