PURPOSE & OVERVIEW OF THE H-1B PROGRAM
The H-1B visa is a temporary (nonimmigrant) classification that allows U.S. employers to hire foreign professionals in positions that require theoretical or practical application of specialized knowledge, typically requiring at least a bachelor’s degree in a specific field. The H-1B is the primary U.S. work visa for professional-level occupations.
WHAT IS A ‘SPECIALTY OCCUPATION’?
A position qualifies as a specialty occupation if it requires: (1) theoretical and practical application of specialized knowledge, and (2) at least a bachelor’s degree or higher in a specific discipline or its equivalent.
Occupations that commonly qualify include engineers, scientists, IT and computer professionals, accountants, lawyers, medical professionals, architects, professors, and financial/business analysts.
ADVANTAGES & DISADVANTAGES
Key Advantages:
Dual intent is allowed — H-1B beneficiaries may pursue permanent residence without jeopardizing nonimmigrant status
No labor market test — employers do not need to prove a shortage of U.S. workers, except in very limited circumstances
Full-time or part-time work permitted, including concurrent employment with multiple employers
AC21 allows extensions beyond six years for those with pending or approved immigrant petitions
H-4 spouses and children may accompany the H-1B worker; spouses may qualify for work authorization in limited circumstances
Key Disadvantages:
Lottery system — limited annual cap makes selection uncertain
High compliance burden for employers — strict LCA and wage rules
Increasing USCIS scrutiny, especially for business or hybrid roles
Beneficiary typically cannot self-petition
THE H-1B CAP & LOTTERY SYSTEM
Annual limits are 65,000 for the regular cap and 20,000 for the U.S. master’s cap. Employers must complete an online registration with USCIS each spring (typically March 1-20). The following are not subject to the H-1B cap: universities and colleges, nonprofit entities affiliated with universities, nonprofit and government research organizations, physicians under Conrad 30 waiver programs, and extensions for existing H-1B holders.
| Fiscal Year | Total Registrations | Selected |
| FY 2022 | 308,613 | 131,924 |
| FY 2023 | 483,927 | 127,600 |
| FY 2024 | 780,884 | 188,400 |
| FY 2025 | 479,953 | 135,137 |
| FY 2026 | 358,737 | 120,141 |
EMPLOYER OBLIGATIONS & COMPLIANCE
The employer must offer a specialty occupation role, maintain an employer-employee relationship, pay at least the required wage, file and post the LCA properly, maintain a public access file, and file amendments for material changes in location, duties, or wage.
Labor Condition Application (LCA)
Prior to filing an H-1B petition, the employer must obtain LCA approval from the Department of Labor. The LCA includes attestations regarding payment of required wages, no adverse working conditions, no strike/lockout, and notice to workers or unions. Within one business day of filing, the employer must establish a Public Access File that may be viewed by any person. LCA validity is up to 3 years.
TERMS, CONDITIONS & EXTENSIONS
Initial validity is up to 3 years, renewable once for up to 6 years total. AC21 allows 1-year extensions when PERM or I-140 has been pending 365+ days, and 3-year extensions when an I-140 is approved but a visa backlog exists. Time spent outside the U.S. may be recaptured to extend H-1B validity.
FREQUENTLY ASKED QUESTIONS
What happens if the H-1B employee is terminated?
They receive up to a 60-day grace period to find a new employer, change status, or depart the U.S.
Can H-1B workers work remotely?
Yes, but a new LCA worksite posting and an amended petition may be required.
Can the employee be promoted?
Yes, but a material change may require filing a new petition with USCIS.
Can H-1B workers have equity or stock options?
Yes, if structured appropriately and not replacing wage requirements.
Can a foreign worker self-sponsor for a green card?
Only in limited cases such as EB-2 National Interest Waiver or EB-1A. H-1B will generally require an employer sponsor.
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