H-1B Visa Roadmap

The H‑1B classification is available to foreign professionals coming temporarily to the U.S. to fill a U.S. employer’s “specialty occupation” position. A specialty occupation position requires the employee to hold at least a bachelor’s degree or its equivalent and to apply highly specialized knowledge to perform the duties and responsibilities of the position. Specialty occupations generally include positions in accounting, architecture, arts, education, engineering, law, mathematics, medicine, and management and executive positions where a specific education is required to perform the duties. For example, “Vice President of Engineering” or “Product Manager” would likely qualify when it is demonstrated that the job requires an engineering degree.

The eligibility criteria for H‑1B status are relatively straightforward, but the rules and regulations governing this classification can be quite complex. In addition, there is a numerical limit on the number of foreign professionals who can obtain H‑1B status each year. Nonetheless, the H‑1B has several advantages compared to other temporary work permits and it can be an excellent starting point for those who want to pursue permanent residence in the U.S., including entrepreneurs.

H-1B Requirements

The foreign national (FN) and the U.S. employer must meet the following basic requirements:

  • The U.S. employer is extending the FN a temporary job offer for a specialty occupation position.
  • The FN possesses the necessary credentials: (a) A minimum of a bachelor’s degree in the field of the specialty occupation from an accredited U.S. school; (b) a foreign degree that has been evaluated to be the equivalent of such U.S. degree; (c) an unrestricted license or certification to practice if the specialty occupation requires it; or (d) verifiable and recognized education, experience, or training found to be the equivalent of a bachelor’s degree or higher in the field of the specialty occupation, along with a relevant history of increasingly responsible positions. As a rule of thumb, three years of relevant work experience is the equivalent of one year of university education.
  • The U.S. employer is a real, live operating business that has enough work to employ the FN for the entire duration of requested H‑1B status (typically three years).
  • The U.S. employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL) before filing the actual H‑1B petition on behalf of the FN.

The Federal Identification Number (FEIN) Verification Process

Employers who have never filed an H‑1B petition must ensure that their federal employer identification number (FEIN) is registered and verified. This process includes providing the organization’s SS-4 letter, on which the IRS assigned their FEIN, to the DOL. This allows the DOL to confirm the FEIN belongs to the company and enter the information into DOL systems.

In lieu of that letter, employers may submit at least two documents from third parties showing the employer’s FEIN. These documents may include a tax return, IRS Form 941, a bank letter, or a state employment record. Once requested, the FEIN registration takes three to five business days to complete.

The Labor Condition Application Process

The U.S. employer must certify to the DOL that, in hiring the FN, it will protect similarly employed U.S. workers in the same geographic area. To this end, the employer electronically files Form 9035, or what is also known as a Labor Condition Application (LCA) with the DOL. The LCA is typically certified and returned in five to seven business days. This filing certifies:

  • The employer is paying the higher of either the wages that it pays its own similarly employed workers or 100 percent of the wages paid to similar workers employed in the same geographic
  • The working conditions of U.S. workers employed at the employment site are not adversely affected by the hiring of the
  • There is no strike/lockout at the worksite nor in the occupation for which a foreign professional is sought.
  • The employer has given notice to current employees that it is seeking to hire an H‑1B professional. This is done by posting a notice in two conspicuous places for 10 consecutive business days or providing communication to the designated collective bargaining representative if applicable. The employer may also qualify for an electronic notification, in certain

In addition, the employer must maintain a file that is open to the public – the “Public Access File” (PAF) – and follow through on the certification filed with the DOL or they are in violation of the law. Noncompliance can result in the employer being required to pay back wages and/or the imposition of civil monetary penalties.

Documentation

The H‑1B petition filed with U.S. Citizenship and Immigration Services (USCIS) must contain:

  • The certified Form 9035 LCA.
  • A very detailed description of the position offered, including job title, specific job duties and responsibilities, and salary.
  • Evidence that the position qualifies as a specialty occupation.
  • Information about the U.S. company, such as corporate tax returns, financials and company brochures or website excerpts. It may also be helpful to provide details of projects the FN will be working on while in H‑1B
  • Copies of the FN’s educational credentials, including transcripts, degree certificates and education evaluations (where applicable).
  • The FN’s résumé and proof of any relevant job experience.

Admission

An initial stay is granted for three years at a time for a maximum total of six years. After six years, the FN must spend one year abroad, outside the U.S., to become eligible for another six years in H‑1B status. However, exceptions are available in the following situations:

  • The beneficiary of an already approved employment-based I-140 immigrant (aka green card) petition qualifies for extensions of H‑1B status in three-year increments if he or she is subject to long wait times caused by a country-specific backlog in available immigrant visas.
  • The beneficiary of a timely filed labor certification or I-140 employment-based immigrant petition that has been pending for over 365 days qualifies for extensions of H‑1B status in one-year increments until the immigrant petition is approved or denied.

Extensions of H‑1B status are not subject to any numerical limits.

Family

The H-1B worker’s spouse and unmarried children under the age of 21 are eligible to apply for H-4 status to accompany or join the H‑1B principal in the United States. H‑4 status allows the H-1B’s spouse and children to attend school in the U.S., but not to work. Exceptions are currently made for H-4 spouses whose H‑1B principal has started the process of pursuing employment-based permanent residence, allowing these H‑4 spouses to apply for a work permit.

Strategies/Options

The H-1B Cap and the “Lottery”

Congress has mandated a cap on the number of new H‑1Bs that can be issued each year. This cap allows for approximately 85,000 total H-1Bs split between individuals who qualify based on a bachelor’s degree (65,000 “regular cap”) and individuals who have received a master’s degree or higher from a U.S. college or university (20,000 “master’s cap”). Typically, the demand far outpaces the number of available cap-subject H-1Bs. U.S. Citizenship and Immigration Services (USCIS) therefore conducts a random lottery to determine for which FNs an H-1B petition may be filed.

Electronic Registration Requirement for Cap-Subject Cases

USCIS has an electronic H-1B registration process for cap-subject petitions aimed at making the H-1B cap petition process more efficient and cost-effective. Under this process, employers first submit an electronic registration and pay an H‑1B registration fee. The online registration form asks for a few basic data points relating to the employer and prospective employee, including whether the FN has obtained a U.S. master’s or higher degree. The period for submitting electronic H-1B registrations generally lasts for a minimum of 14 calendar days sometime in March.

For the fiscal year (FY) 2025, the government implemented additional account enhancements and a new, beneficiary-centric system that tracks and identifies registrations based on the FN’s passport or travel document data. These changes should allow for better workflow and collaboration between the stakeholders and provide more fairness in the selection process since each FN will enter the lottery only once, no matter how many registrations were submitted on their behalf.

Once a registration has been selected, the registrant (i.e., the prospective employer) will be notified and given at least 90 days to submit a complete H-1B cap petition with all required fees and supporting documents, including the LCA (Labor Condition Application).

Employers Not Subject to the H-1B Cap

Exceptions to the H-1B cap exist for institutions of higher education (or related nonprofit entities), nonprofit research organizations, or government research organizations. This is a nuanced area of law and generally requires a seasoned immigration attorney to properly evaluate if a potential petitioning organization would be exempt from the numeric H-1B cap.

Recapturing Time

As mentioned above, H-1B status is generally limited to a total of six years and extensions beyond the six-year maximum are available only to FNs in line for permanent residence. However, counted toward this six-year limit are only those days on which the FN is physically present in the U.S. and in H-1B status. This means that any full day spent abroad, for whatever reason, and even any full day spent in the U.S. but in a different nonimmigrant status (except L status) can later be reclaimed and added back to the FN’s allowance of H‑1B time until the six-year limit has been met. Any time successfully recaptured will also be given to the H‑1B principal’s spouse and children in H-4 status.

In requesting a recapture of time, the H‑1B petitioner should present a chart listing the exact time periods the FN spent outside the U.S., along with evidence of physical presence abroad, such as I‑94 records, passport stamps, airplane tickets and boarding passes and receipts of purchases made abroad.

Dual Intent

U.S. Immigration regulations make clear that H-1B status must be temporary. However, H‑1B holders are not required to maintain a residence outside the United States to demonstrate temporary intent. In fact, FNs in H-1B status are allowed to demonstrate an intent to live and work permanently in the U.S. This is called the concept of “dual intent” allowing H‑1B (and L‑1) status holders to simultaneously have temporary (nonimmigrant) intent and permanent (immigrant, or green card) intent to live and work in the United States.

Common Approval Issues

There are several issues U.S. Immigration may raise when deciding whether to approve an H‑1B petition, including the following:

  • Does the position offered require a minimum of a bachelor’s degree, and
  • Is there enough “specialty occupation” work available for the FN during the time requested?

Does the Position Require a Bachelor’s Degree?

Just because the employer requires a bachelor’s degree for the position does not mean U.S. Immigration will agree. U.S. Immigration defines a “specialty occupation” as one that requires a theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation. U.S. Immigration’s standards for a specialty occupation require that the position must meet one of four criteria:

  • A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • A degree requirement is common in the industry and parallel positions among similar organizations or the particular position is so complex or unique that a degree is required;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Evidence commonly submitted to meet this requirement includes:

  • An excerpt from the Occupational Outlook Handbook about the position that specifically states a bachelor’s degree is a minimum requirement for the occupation;
  • Letters attesting that the degree requirement is common in the industry and parallel positions among similar organizations;
  • Employer’s organizational chart showing similarly employed individuals and copies of those individuals’ credentials evidencing they also possess a bachelor’s degree or equivalent; and
  • A detailed list of the position’s duties and responsibilities, including other positions in and outside the company with whom the foreign national will interact in performing the job.

Is There Enough “Specialty Occupation” Work Available for the Time Requested?

For established companies with years of operating history and scores of employees, proving that there will be enough specialty occupation work available for the full H‑1B period is usually not difficult. However, it can be a problem for startups and less established companies, particularly first-time H‑1B petitioners.

To prove this criterion, the startup company must provide evidence that there is indeed enough work. Such evidence may include contracts or services agreements with clients covering at least three years, R&D progress reports, a Gantt chart showing the R&D stages with projections of when each R&D project will be completed, a business plan, and company brochures and pamphlets outlining the products or services offered by the company and showing ongoing business operations which will require the FN to perform the duties associated with their specialty occupation for the duration of the requested period.

Legal and policy sources:

Immigration policies and regulations are complex and frequently subject to change. The information contained in this roadmap is intended to provide you with a general overview and may not address your particular circumstances and needs. Serotte Law will assist you with the application and documentation process and answer any questions you may have about the H‑1B classification. Request a consultation or give us a call at 888-875-8110.

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