What is the H-1B classification?

H-1B is a nonimmigrant classification for temporary employment in the United States. There are three types of foreign nationals (also known as “beneficiaries”) who may have petitions filed on their behalf under the H-1B classification:

  • Specialty Occupations — This includes beneficiaries who are coming to the U.S. to perform services in a “specialty occupation.” A specialty occupation is a position that normally requires a bachelor’s degree (or higher degree) in a specific field. This is the most common type of beneficiary in the H-1B classification.
  • Department of Defense Cooperative Research and Development Projects — This includes beneficiaries who will work in cooperative research and development projects administered by the U.S. Department of Defense.
  • Fashion Models — This includes beneficiaries who are fashion models of distinguished merit and ability.

What are the general requirements for the H-1B classification?

The main requirements to be eligible for the H-1B classification are:

Employer-Employee Relationship

The foreign national must have an “employer-employee” relationship with the petitioning U.S. employer (also known as the “petitioner”). This means the petitioner must generally have the right to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.

Specialty Occupation

The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor’s degree (or higher degree) in a specific field as a minimum for entry into the occupation.

Paid Actual Wage or Prevailing Wage

The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:

  • Actual Wage — The wage rate paid by the employer to employees with similar experience and qualifications for that position.
  • Prevailing Wage — The wage rate required by a union contract or the average wage rate paid to similarly employed workers in the specific geographic area.

Foreign National’s Qualifications

The foreign national must meet the minimum educational and/or experience requirements for the specialty occupation position. This means the employer must demonstrate that the foreign national holds the required bachelor’s degree (or higher degree), or has sufficient relevant experience equivalent to the minimum educational requirements for the specialty occupation position, and is otherwise qualified for the specialty occupation position.

What limits are there on the H-1B classification?

Annual Cap of H-1B Visas

The H-1B classification is limited to an annual cap of 85,000 new visas in each fiscal year. This includes 20,000 H-1B visas set aside for foreign nationals who obtained a master’s degree from a U.S. university. New H-1B visas become available each year on October 1, which is the start of the government’s fiscal year. Because the demand for new H-1B visas is often higher than the available 85,000, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery in March of each year to select which U.S. employers may petition for one of the new H-1B visas that will be available the following October.

Check out BAL’s analysis of the FY 2024 H-1B cap registration and selection numbers for fiscal years 2021-2024.

Check out BAL’s latest H-1B Cap Post-Lottery podcast episode!

Time Limitations

H-1B classification may be granted in increments of up to three years at a time and extended in increments of up to three years at a time. Extensions can be initiated up to six months prior to the expiration of H-1B status.

In general, a foreign national may hold the H-1B classification for a maximum of six years. Time spent in H-1B, L-1A, and L-1B classifications are counted together toward the applicable maximum.

After reaching six years in H-1B classification, the foreign national may:

  • Change to a different nonimmigrant classification in order to continue working in the U.S., if the foreign national is eligible for another classification;
  • Obtain lawful permanent residence (a “green card”) to continue working in the U.S.; or
  • Depart and remain outside of the U.S. for one continuous year before obtaining a new H-1B visa from the available 85,000 each fiscal year.

Extensions Beyond Six Years

There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:

  • Have a Form I-140 (Immigrant Petition for Alien Worker) approved on the foreign national’s behalf but be unable to receive lawful permanent residence (a “green card”) due to a backlog of immigrant visa availability for the foreign national’s country of birth; or
  • Have a Labor Certification and/or I-140 (Immigrant Petition for Alien Worker) filed on the foreign national’s behalf at least 365 days before the end of the foreign national’s six years in H-1B classification.

What is the process to obtain H-1B classification?

Obtaining H-1B classification requires a number of steps:

  • File online registration for cap-subject H-1B — If the foreign national is subject to the annual cap of 85,000 new H-1B visas, the employer must file an online registration form during the H-1B cap registration period in March. After the registration period closes, USCIS conducts a lottery to select registrations. If USCIS selects a registration filed by the employer, the employer may file an H-1B cap petition on Form I-129 (Petition for Nonimmigrant Worker) for the foreign national named in the registration. If the foreign national is not subject to annual cap, the H-1B process starts with obtaining a certified Labor Condition Application (LCA) described below.
  • Obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor — The employer must prepare a Labor Condition Application (LCA) to file with the U.S. Department of Labor. This process requires the employer to attest to the working conditions and wages for the intended foreign national. The employer must also post copies of the LCA or notice of filing at relevant work locations to provide notice to other employees that it will be filing the LCA with the U.S. Department of Labor. The employer must submit the LCA to the U.S. Department of Labor for certification.
  • File Form I-129 (Petition for Nonimmigrant Worker) with USCIS — The employer must submit a Form I-129 (Petition for Nonimmigrant Worker) to USCIS with information and supporting documentation to demonstrate that the position and foreign national qualify for the H-1B classification. Premium processing is available for Form I-129 petitions filed with USCIS for the H-1B classification.

Premium processing is an optional service offered by U.S. Citizenship and Immigration Services (USCIS) that provides expedited processing for certain Forms I-129 (Petition for a Nonimmigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker). In most cases, premium processing for Form I-129 petitions for the H-1B classification guarantees processing by USCIS within 15 calendar days for an additional fee. If USCIS does not take action on the Form I-129 within the 15 calendar days after it receives the request for premium processing, USCIS will refund the additional fee and will continue with expedited processing.

 

What is the difference between H-1B “change of status” petitions and H-1B “consular” petitions?

If a registration is selected in the lottery, there are two options for filing the H-1B petition during the 90-day filing window, depending on where the foreign national is when the petition is filed and how the foreign national plans to activate the H-1B status after the petition is approved.

Change of Status: If currently in the U.S. and in another valid status (e.g., F-1, L-1) at least until October 1, we can file the H-1B cap petition as a “change of status” petition, meaning that the H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later. If the foreign national is currently in the U.S. in F-1 status — including an Optional Practical Training (OPT) or STEM extension — but their status will expire before October 1, they may be eligible for a cap gap extension of their F-1 status to that date.

Consular Notification: However, if the foreign national is not in the U.S. at the time the H-1B petition is filed, does not have another status valid until October 1, or if other situations (explained below) apply, the H-1B petition is filed as a “consular notification” petition. In this situation, in order to activate H-1B status after the H-1B petition is approved, the foreign national will need to enter the U.S. with the H-1B approval notice from USCIS and a valid H-1B visa stamp in their passport. The foreign national will need to obtain an H-1B visa at a U.S. embassy or consulate while outside the U.S. H-1B status will take effect after the foreign national obtains the H-1B visa and uses it and the H-1B approval notice to enter the U.S. If in the U.S. when the H-1B petition is approved, the foreign national will need to leave the U.S. and re-enter with their H-1B approval notice after receiving their H-1B visa from the U.S. embassy or consulate. Note that Canadian citizens are exempt from the visa requirement and can activate their H-1B status by entering the U.S. with the H-1B approval notice. The earliest the foreign national can enter the U.S. to activate H-1B status is ten days before the starting validity date on the H-1B approval notice.

When will H-1B status take effect?

If a foreign national’s case is filed as a change of status, H-1B status will automatically take effect on October 1, 2023, or on the date the petition is approved, whichever date is later. If the case is filed as a consular notification, H- 1B status will take effect after the foreign national activates H-1B status by entering the U.S. with their H-1B visa and H-1B approval notice. As a reminder, Canadians are visa exempt and do not have to apply for a visa at a U.S. embassy or consulate. To activate their H-1B status, they can show their H-1B approval notice to a Customs and Border Protection officer when entering the U.S.

Do all foreign nationals have to travel to activate H-1B status?

If a foreign national’s H-1B petition is a change of status, he or she does not have to travel to activate H-1B status. If the H-1B petition is a consular notification, the foreign national must obtain an H-1B visa at a U.S. embassy or consulate (unless Canadian) and then travel to the U.S. to be admitted to the U.S. in H-1B status.

What do foreign nationals need in order to obtain an H-1B visa stamp at a U.S. embassy or consulate abroad?

Foreign nationals will need to bring the original H-1B approval notice and a copy of the H-1B petition. In addition, foreign nationals will need to review the U.S. embassy or consulate’s website to learn what specific documentation is required, as every U.S. embassy or consulate has different application procedures and requirements.

Are family members of H-1B workers eligible for nonimmigrant classification?

Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.

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