What is an H-1B Visa?
The H-1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign professionals in specialty occupations. These roles require at least a bachelor’s degree and theoretical or technical expertise in fields such as IT, finance, engineering, healthcare, architecture, and academia, as just a few examples.
The visa is employer-sponsored, meaning a U.S. employer must file a petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the prospective employee. H-1B status is commonly used by multinational companies, startups, research institutions, and universities to access global talent.
Who is the H-1B Visa For?
The H-1B visa is for foreign nationals who meet the following criteria:
- Hold a job offer from a U.S. employer in a specialty occupation.
- Possess at least a U.S. bachelor’s degree or equivalent in a relevant field.
- Intend to work in a role that aligns with their academic background and experience.
Common occupations include:
- Software developers and IT consultants
- Mechanical and electrical engineers
- Accountants and financial analysts
- Medical professionals and researchers
- University professors and lecturers
- Architects and urban planners
Specialty Occupation Requirements
- A specialty occupation is one that requires:
- A minimum of a U.S. bachelor’s degree or its equivalent.
- A degree that directly relates to the duties of the job.
- A body of specialized knowledge.
The employer must demonstrate that the role qualifies as a specialty occupation under USCIS regulations.
The H-1B Lottery Process
Due to high demand, the H-1B program is subject to an annual cap:
- Regular Cap: 65,000 visas per fiscal year
- Master’s Cap: An additional 20,000 visas for individuals with a U.S. master’s degree or higher
Registration and Selection Process
- Employers must register each candidate through the USCIS electronic registration system during the designated period (typically March).
- If registrations exceed the cap, USCIS conducts a random lottery.
- Selected registrants are invited to file a complete H-1B petition.
H-1B Visa Application Process
Step 1: Registration with USCIS: Employer registers the beneficiary electronically.
Step 2: Labor Condition Application (LCA): Employer submits LCA to the Department of Labor.
Step 3: File Form I-129: Petition for a Nonimmigrant Worker, filed with USCIS.
Step 4: USCIS Review: Petition may be approved, denied, or a Request for Evidence (RFE) may be issued.
Step 5: Visa Stamping (if outside U.S.): Upon approval, beneficiary may apply for visa at a U.S. consulate.
Step 6: Begin Employment: Beneficiary can start work on or after October 1.
Duration and Extensions
- Initial Duration: 3 years
- Maximum Duration: 6 years (with possible exceptions if a green card is in process)
- Extensions: May be granted in 1- or 3-year increments
Family and Dependents
H-1B visa holders can bring immediate family members (spouse and children under 21) under the H-4 dependent visa.
- H-4 Spouses: May apply for work authorization (EAD) under certain conditions—typically if the H-1B holder is on the path to permanent residency.
- Children: Can attend school but cannot work on H-4 status.
Cap-Exempt H-1B Employers
Some institutions are exempt from the H-1B cap, including:
- Accredited nonprofit institutions of higher education
- Non-profit entities affiliated with higher education
- Non-profit organizations primarily engaged in research
- Government organizations
These employers may submit petitions at any time of year and are not subject to the annual lottery.
H-1B to Green Card Pathway
The H-1B visa is dual-intent, allowing foreign workers to apply for permanent residency while on non-immigrant status. The typical employment-based green card path involves:
- PERM Labor Certification (except for some categories like EB-1 or NIW)
- I-140 Immigrant Petition
- Adjustment of Status (I-485)
Transitioning to a green card can help avoid the H-1B’s six-year limit and open a pathway to permanent work eligibility.
Common H-1B Challenges and How to Address Them
| Challenge | Description | How Benach Pitney Reilly Immigration Helps |
|---|---|---|
| Lottery Selection | Demand for H-1B visas far exceeds supply, so most applicants are subject to a random lottery and not all are selected. | An experienced immigration attorney can assess whether you may qualify for alternative employment-based visas or explore long-term strategies such as O-1 or National Interest Waivers (NIW) where applicable. |
| Specialty Occupation Disputes | USCIS may question whether the offered position meets the criteria for a “specialty occupation” requiring a bachelor’s degree or higher in a specific field. | Benach Pitney Reilly Immigration builds strong evidentiary records and prepares legal arguments that clearly tie job duties to specialized knowledge and industry standards. |
| RFEs (Requests for Evidence) | Frequent triggers include unclear job duties, questionable employer-employee relationships, or unverified academic credentials. | Our attorneys proactively prepare filings to avoid RFEs and respond effectively when issued — including obtaining expert reports, academic evaluations, and detailed employer documentation. |
| Status Gaps | Interruptions in employment or visa status — especially between jobs or while waiting for approval — can create legal vulnerability. | We offer strategic guidance on maintaining lawful presence and advise on options like consular processing or change of status filings to mitigate risks tied to status gaps. |
Working with an experienced immigration attorney can help navigate these challenges proactively. Contact us today!
H-1B vs. Other Visa Types
| Visa Type | Purpose | Key Differences |
|---|---|---|
| L-1 Visa | Intra-company transferees | Must have worked abroad for the same employer |
| O-1 Visa | Extraordinary ability individuals | No annual cap; higher evidentiary burden |
| TN Visa | Canadian and Mexican professionals under USMCA | Limited to certain occupations; only for citizens of Canada/Mexico |
Related Services Offered by Benach Pitney Reilly Immigration
- H-1B Cap Filing & Strategy
- Cap-Exempt Petitions
- RFE & Denial Response
- H-1B to Green Card Transition (PERM, NIW, EB-1)
- H-4 Work Authorization Support
Why Work with Benach Pitney Reilly Immigration?
Whether you’re a startup sponsoring your first H-1B employee or a foreign professional navigating U.S. immigration, our team delivers:
✅ Clear guidance through the H-1B lifecycle
✅ Proven success with challenging cases and RFEs
✅ Personalized strategy, including cap-exempt and green card planning
✅ Transparent communication at every step
Your H-1B journey deserves more than just paperwork. It deserves a team that advocates for your future.