H-1B Visa Lawyers for Employers and Professionals

Last reviewed for legal accuracy: September 22, 2026.

The H-1B classification allows U.S. employers to hire qualified foreign professionals in specialty occupations. Although the basic concept is straightforward, successful H-1B cases require careful planning around the position, the worker’s qualifications, Department of Labor requirements, the H-1B cap when applicable, worksite issues, and filing timing.

What Is an H-1B Specialty Occupation?

An H-1B specialty occupation is a position that requires the theoretical and practical application of a body of highly specialized knowledge and, as a minimum for entry into the occupation, a bachelor’s or higher degree in a directly related specific specialty or its equivalent.

Current regulations focus on whether there is a logical connection between the required degree field and the duties of the position. A position may accept more than one qualifying field of study if each field is directly related to the job duties, but a generalized degree requirement without a meaningful connection to the work is generally not enough.

Common H-1B occupations can include positions in engineering, information technology, architecture, accounting, finance, medicine and health care, scientific research, education, and other professional fields. The job title alone does not determine eligibility. USCIS looks at the actual duties, the employer’s requirements, the nature of the business, and the evidence showing why specialized education is normally required to perform the work.

Who Can Qualify as an H-1B Worker?

The foreign national generally must have the education, training, experience, or professional credentials necessary to perform the specialty occupation. A U.S. bachelor’s or higher degree in a qualifying specialty is the most direct route, but foreign education and certain combinations of education, specialized training, and progressively responsible experience may also be used when properly evaluated.

Some occupations also require a state or other professional license. Licensing issues should be addressed early because they can affect both eligibility and the period for which an H-1B petition may be approved. We also maintain specific guidance for physicians and physical therapists.

The H-1B Cap and Current Selection Process

Congress generally limits new cap-subject H-1B approvals to 65,000 each fiscal year, with an additional 20,000 numbers available to qualifying beneficiaries who earned a master’s or higher degree from an eligible U.S. institution.

For most cap-subject cases, the employer must first submit an electronic registration during the registration period announced by USCIS. Under the current rules used for the FY 2027 cap season, USCIS maintains a beneficiary-centric system but, when registrations exceed the number needed to meet the cap, uses a wage-weighted selection process among unique beneficiaries that generally gives greater selection weight to higher OEWS wage levels. If a beneficiary is selected, an eligible registrant may then file the full H-1B petition during the filing period stated in the selection notice.

For a detailed explanation of the current system, see our article What Is the FY 2027 Wage-Weighted H-1B Lottery Selection?

Registration and selection do not establish that the H-1B petition qualifies for approval. The employer must still prove all requirements in the complete petition.

Who May Be Exempt From the H-1B Cap?

Not every H-1B filing is subject to the annual numerical cap. Certain institutions of higher education, qualifying nonprofit entities related to or affiliated with institutions of higher education, nonprofit research organizations, governmental research organizations, and some employment connected to qualifying cap-exempt organizations may qualify for cap exemption.

A worker who was previously counted against the H-1B cap may also be able to change employers or extend H-1B status without going through another cap selection process, depending on the person’s immigration history and remaining H-1B eligibility.

The Labor Condition Application

Before filing most H-1B petitions, the employer must obtain a certified Labor Condition Application, commonly called an LCA, from the U.S. Department of Labor. Among other obligations, the employer makes attestations concerning wages and working conditions and must pay at least the required wage under the applicable rules.

The LCA is not the same as PERM labor certification. H-1B cases do not generally require the employer to test the labor market for available U.S. workers in the way that many permanent-residence cases do.

H-1B Changes of Employer and Portability

Many H-1B professionals can change employers without waiting for the new petition to be approved. When the portability requirements are met, the worker may generally begin employment with the new H-1B employer after USCIS receives a properly filed, nonfrivolous H-1B petition, or on the requested start date if later.

Whether a person can start immediately depends on the person’s current status, immigration history, and the filing itself. International travel while a change-of-employer petition is pending can also affect strategy, so travel plans should be reviewed before departure.

Read more: Can H-1B Workers Start a New Job Before USCIS Approves the Transfer?

H-1B Extensions, the Six-Year Limit, and Green Card Cases

H-1B status is commonly approved in periods of up to three years, and many H-1B professionals are subject to a six-year general limit. Time spent outside the United States during H-1B validity may sometimes be recaptured and added back to the available H-1B period.

Some workers can extend H-1B status beyond six years under the American Competitiveness in the Twenty-First Century Act (AC21). For example, certain beneficiaries with a qualifying labor certification or Form I-140 filed at least 365 days before the end of the sixth year may qualify for one-year extensions. In other circumstances, a beneficiary with an approved I-140 who cannot obtain permanent residence because an immigrant visa number is unavailable may qualify for extensions of up to three years at a time.

These rules are technical and fact-specific. An approved I-140 does not automatically create unlimited three-year H-1B extensions in every case. For long-term planning, employers and workers should consider the timing of employment-based permanent residence, including EB-2 National Interest Waivers and EB-1A extraordinary ability where appropriate.

When Is an H-1B Amendment Required?

Material changes in H-1B employment may require the employer to file an amended or new petition. A change in work location can be especially important because it may trigger a new LCA and, depending on the circumstances, an amended H-1B petition. Changes in job duties, hours, employer structure, or other terms may also require immigration review.

Employers should evaluate significant changes before implementing them rather than waiting until an extension, site visit, or later filing exposes a compliance issue.

Third-Party Worksites and Evidence of a Bona Fide Position

Third-party placements require careful documentation. Current H-1B regulations permit USCIS to request contracts or similar evidence to confirm the bona fide nature of the position, and when a beneficiary will perform work for a third party, the actual work and the third party’s requirements can be important to the specialty-occupation analysis.

For difficult filings or a USCIS evidence request, see What Is an H-1B RFE and How Can a Lawyer Help Respond?

H-1B for Business Owners and Entrepreneurs

Company founders and business owners may qualify for H-1B classification when the statutory and regulatory requirements are met. Current regulations expressly address beneficiary-owners with a controlling interest in the petitioning entity. These cases have additional requirements, and the initial petition and first extension for certain controlling beneficiary-owners are generally limited to 18 months each.

The business must be real, the offered position must be bona fide, and the specialty-occupation requirements still apply. Entrepreneurs should compare H-1B with other potential strategies, including the E-2 treaty investor visa, L-1 classification, and other nonimmigrant work visa options.

H-4 Status for Spouses and Children

The spouse and unmarried children under age 21 of an H-1B worker may generally seek H-4 dependent status. H-4 status does not automatically provide employment authorization. Certain H-4 spouses may qualify to apply for an Employment Authorization Document when the H-1B principal meets specific green-card-related requirements.

Job loss can affect both the principal worker and dependent family members. See our guide to the H-1B 60-day grace period after job loss.

Common H-1B Issues We Address

• Whether the offered position qualifies as a specialty occupation
• Whether the beneficiary’s degree is sufficiently related to the position
• Foreign degree equivalency and experience evaluations
• Cap-subject versus cap-exempt strategy
• Electronic registration and cap selection
• Changes of employer and H-1B portability
• Extensions and recapture of time spent abroad
• AC21 extensions beyond the six-year limit
• Worksite changes and amended petitions
• Third-party placement and evidence of a bona fide position
• Concurrent H-1B employment
• Owner-beneficiary and startup cases
• Requests for Evidence and Notices of Intent to Deny
• Travel, visa stamping, and consular processing questions
• Coordination of H-1B status with PERM, I-140, and adjustment-of-status strategy

Frequently Asked Questions About H-1B Visas

Do all H-1B cases require cap selection?

No. The annual selection process generally applies to new cap-subject H-1B cases. Cap-exempt employers and many workers who were previously counted against the cap may file without participating in a new selection process.

Can I transfer an H-1B to a new employer?

There is no formal immigration category called an H-1B “transfer,” but a new employer can file an H-1B petition for an eligible worker. Many workers can begin employment after USCIS receives the qualifying petition rather than waiting for approval.

Does an H-1B approval guarantee a visa stamp?

No. USCIS petition approval and visa issuance are separate steps. A person who needs an H-1B visa to seek admission must still apply through the U.S. Department of State, and the consular officer makes the visa-issuance determination.

Can an H-1B worker pursue a green card?

Yes. H-1B classification is compatible with pursuing permanent residence. Many H-1B professionals pursue employer-sponsored PERM and I-140 cases, while others may qualify for self-petitioning classifications such as the EB-2 National Interest Waiver or EB-1A extraordinary ability.

Speak With an H-1B Immigration Lawyer

H-1B strategy is often about more than completing Form I-129. The strongest cases begin by identifying the legal standard, the evidence needed to meet it, and any timing or status issues that could affect the employer or foreign national.

Feldman Feldman & Associates PC is based in San Diego and represents employers and professionals across the United States. Contact our immigration team to discuss an H-1B filing or related employment-based immigration strategy.