The H-1B Visa: Specialty Occupations, Eligibility, Cap, and the 2025–2026 Policy Landscape

The $100,000 Presidential Proclamation (September 2025)

Who Is Subject to the $100,000 Requirement

The Proclamation applies to petitions filed on or after September 21, 2025 on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa. It also applies when a petition requests consular notification, port of entry notification, or pre-flight inspection for a beneficiary who is in the US, or when a petition requesting change of status, amendment, or extension of stay is filed and USCIS determines the beneficiary is ineligible for that benefit (for example, because they are out of status or depart the US before adjudication).

Who Is Not Subject

The Proclamation does not apply to: (a) previously issued and currently valid H-1B visas; (b) petitions submitted before 12:01 a.m. Eastern on September 21, 2025; or (c) petitions requesting an amendment, change of status, or extension of stay for a beneficiary inside the US where USCIS grants that benefit. Holders of valid H-1B visas may continue to travel in and out of the US. Beneficiaries of petitions approved under the exception are not considered subject to the payment if they later depart and apply for a visa or seek reentry.

How to Pay

Payment is made through Pay.gov — H-1B Visa Payment to Remove Restriction. The $100,000 payment must be scheduled before the petition is filed with USCIS, and proof of payment scheduling must accompany the petition at the time of filing.

Exceptions Granted by DHS Secretary

Exceptions are available only in extraordinarily rare circumstances where the Secretary of Homeland Security determines that the beneficiary's presence as an H-1B worker is in the national interest, no American worker is available, the beneficiary does not pose a security or welfare threat, and requiring the payment would significantly undermine US interests. Employers who believe their situation qualifies may submit a request and supporting evidence to H1BExceptions@hq.dhs.gov. The threshold is intentionally very high.

What Is a Specialty Occupation

The H-1B covers workers in specialty occupations — defined at 8 CFR 214.2(h)(4)(ii) as occupations requiring both: (1) the theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor's or higher degree in a directly related specific specialty (or equivalent) as a minimum for entry into the occupation in the United States.

The word "directly related" means there must be a logical connection between the required degree and the duties of the position — not a tenuous or general connection. An engineer title alone does not make every engineering job a specialty occupation; the specific duties and the degree field must have a clear, articulable link.

For a position to qualify as a specialty occupation under 8 CFR 214.2(h)(4)(iii)(A), it must meet at least one of four criteria:

1. A US bachelor's or higher degree (or equivalent) in a directly related specific specialty is normally the minimum entry requirement for the occupation.
2. A US bachelor's or higher degree in a directly related specific specialty is normally required to perform duties in parallel positions among similar organizations in the employer's industry.
3. The employer or third-party client (if the beneficiary is staffed there) normally requires a bachelor's or higher degree in a directly related specialty to perform the job.
4. The specific duties of the position are so specialized, complex, or unique that the knowledge required is normally associated with a bachelor's degree or higher in a related specialty.

"Normally" in this context means conforming to a type, standard, or regular pattern — not "always." A specialty occupation does not need to universally require a degree as long as it normally does.

H-1B Subcategories: H-1B, H-1B2, and H-1B3

How the Beneficiary Qualifies

Even when a position qualifies as a specialty occupation, the individual beneficiary must independently meet the degree requirement. Under 8 CFR 214.2(h)(4)(iii)(C), a beneficiary qualifies by satisfying any one of the following:

• Holding a US bachelor's or higher degree required by the specialty occupation from an accredited institution;
• Holding a foreign degree that is the equivalent of a US bachelor's or higher degree in the relevant specialty;
• Holding an unrestricted state license, registration, or certification that authorizes full practice of the specialty occupation in the state of intended employment and permits the beneficiary to be immediately engaged in that specialty; or
• Having education, specialized training, and/or progressively responsible experience equivalent to a US bachelor's degree in the specialty, as recognized by expertise through progressively responsible positions directly related to the specialty. As a rule of thumb, three years of qualifying work experience is generally treated as equivalent to one year of college education, but this equivalency must be documented through a proper credentials evaluation.

Foreign Degree Equivalencies

Foreign degree equivalencies require evaluation by a credentials evaluation agency. USCIS does not automatically accept all equivalency evaluations — the evaluator must hold appropriate credentials, the methodology must be transparent, and the conclusion must be well-supported. Evaluations that simply assert an equivalency without explaining how years of education, curriculum, and academic level compare to US standards are regularly challenged.

Licensing Requirements and the Timing Problem

When the state of intended employment requires a license to practice the specialty occupation — medicine, law, engineering, accounting, architecture, nursing — the H-1B beneficiary must generally hold that license before the petition is approved, not merely at the time of filing. See 8 CFR 214.2(h)(4)(v)(A)–(B).

This creates a practical challenge because some states require a valid work authorization or Social Security number before issuing a professional license, creating a circular dependency. USCIS policy does accommodate some scenarios where state licensing requirements make pre-approval licensure impossible — the petition can be approved without the license, conditioned on obtaining it — but the default rule requires the license at approval. When a required license is missing from the petition without explanation, USCIS will issue an RFE for evidence of the license.

The Labor Condition Application (LCA)

The LCA is a Department of Labor certification required for all standard H-1B and H-1B3 petitions. The employer or agent applies on Form ETA-9035/9035E through the DOL's FLAG system. By submitting an LCA, the employer makes several legal attestations:

• Wage obligation: The employer will pay the H-1B worker no less than the greater of (a) the actual wage paid to similarly employed workers at the work site, or (b) the prevailing wage for the occupational classification in the area of intended employment.
• Working conditions: The employer will provide working conditions that will not adversely affect similarly employed US workers.
• No strike or lockout: At the time of the LCA, there is no active strike or lockout at the place of employment.
• Notice requirement: Notice of the LCA filing has been provided to the bargaining representative (if one exists) or posted at the work site.

LCA violations can result in substantial civil monetary penalties, debarment from sponsoring future H-1B petitions, and other sanctions. This is not a bureaucratic formality — employers who do not actually pay the attested wage are subject to back-pay orders enforced by DOL's Wage and Hour Division.

Petition Filing Process

Assuming a valid, selected registration exists (see the separate H-1B Cap Season article for the registration process), the petition follows this three-step path:

1. Employer or agent obtains DOL-certified LCA. For specialty occupations and fashion models, this must be completed before submitting I-129 to USCIS. H-1B2 DOD workers do not require an LCA.
2. Employer or agent files Form I-129 with USCIS. The petition must include the H Classification Supplement, the H-1B Data Collection and Filing Fee Exemption Supplement, the certified LCA (for H-1B and H-1B3), the H-1B registration selection notice, the beneficiary's passport used at registration, and — for petitions subject to the Proclamation — proof of $100,000 payment from Pay.gov. Petitions may be filed online or on paper. Online filing is available through myaccount.uscis.gov. H-1B cap petitions must show a start date of October 1 or later of the applicable fiscal year; petitions may not be filed more than six months before the requested start date.
3. Beneficiary outside the US applies for visa and admission. Once I-129 is approved, beneficiaries abroad apply for an H-1B visa at a US Embassy or Consulate (if a visa is required for their nationality). They then seek CBP admission at a US port of entry. CBP's admission decision is independent — having an approved I-129 does not guarantee admission.

SOC Code Consistency

The Standard Occupational Classification (SOC) code must be consistent across the electronic registration, the LCA, and the I-129 petition. If any discrepancy exists — for example, if the position's duties have evolved since registration — the petition should include a prominently placed explanation (a brightly colored coversheet is recommended by USCIS) explaining the discrepancy and providing documentation. Unexplained mismatches are a basis for denial.

The H-1B Cap and Cap-Exempt Employers

Congress set the annual H-1B cap at 65,000 regular-cap slots, with up to 6,800 set aside for H-1B1 beneficiaries under the US–Chile and US–Singapore free trade agreements. An additional 20,000 master's cap petitions may be filed for beneficiaries who earned a master's or higher degree from a US institution of higher education. Unused H-1B1 slots roll over to the regular cap for the next fiscal year.

The following categories are not subject to the annual cap:

• Petitions filed by US institutions of higher education;
• Petitions filed by nonprofit entities affiliated with or related to a qualifying institution of higher education;
• Petitions filed by nonprofit research organizations or government research organizations;
• H-1B extension petitions (cap only applies to initial grants, not extensions);
• H-1B workers performing labor in the Commonwealth of the Northern Mariana Islands (CNMI) or Guam, for petitions filed before December 31, 2029 under the Consolidated Natural Resources Act of 2008.

Period of Stay

An H-1B worker is generally admitted for up to three years. The initial period may be extended for an additional three-year increment, producing a total of six years. One important exception: if the beneficiary owns a controlling interest in the petitioning organization (more than 50% ownership or majority voting rights), each petition — the initial and the first extension — is limited to an approval period of up to 18 months rather than three years.

After six years in H-1B status, continued extensions require qualifying circumstances under the AC21 framework described below.

Extensions Beyond Six Years Under AC21

The American Competitiveness in the Twenty-first Century Act (AC21) provides two independent routes to H-1B extensions beyond the six-year cap:

Route 1: Approved I-140 with Visa Unavailability (Up to 3-Year Increments)

Under 8 CFR 214.2(h)(13)(iii)(E), an H-1B worker may receive unlimited three-year extensions if they are the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant visa petition and are eligible for that immigrant status but for the per-country or worldwide numerical limitations. The petitioner must demonstrate that a visa is not available as of the petition filing date. These extensions continue until USCIS makes a final decision to revoke the approved I-140, or to approve or deny the application for an immigrant visa or adjustment of status.

Route 2: 365-Day Rule (One-Year Increments)

Under 8 CFR 214.2(h)(13)(iii)(D), an H-1B worker may receive one-year extensions if at least 365 days have elapsed since either: (a) a labor certification was filed with DOL on the worker's behalf (if a certification is required for the immigrant category being pursued), or (b) an immigrant visa petition was filed with USCIS on the worker's behalf.

These one-year extensions continue until a final decision is made on the labor certification or immigrant petition. They are available even if the I-140 is not yet approved, which makes them particularly useful for beneficiaries in the early stages of EB-2 or EB-3 processing.

One-Year Filing Obligation After Visa Becomes Available

A worker who fails to file an adjustment of status application or apply for an immigrant visa within one year of the date an immigrant visa becomes immediately available is no longer eligible for further AC21 extensions based on that petition. USCIS may excuse late filing if the employer establishes that circumstances beyond the worker's or employer's control prevented timely filing — but the bar for that excuse is high, and factors including whether any change in employment was voluntary are weighed.

June 2026 Visa Bulletin Context

For workers from India and China, the practical significance of these AC21 provisions is immense given current Visa Bulletin retrogression. As of the June 2026 Visa Bulletin, USCIS is using Final Action Dates for EB categories. EB-1 India stands at December 15, 2022; EB-1 China at April 1, 2023; EB-2 India at September 1, 2013. Workers with priority dates earlier than these cutoffs can file for adjustment. Workers whose dates have not yet been reached must rely on AC21 extensions to remain in H-1B status while their green card cases mature.

Changing Employers: H-1B Portability

H-1B portability allows a worker to change employers without first obtaining USCIS approval of the new employer's I-129. The key rules are:

• The new employer must properly file a non-frivolous I-129 petition on the worker's behalf before the worker's current H-1B period of authorized stay expires.
• The worker must not have been employed without authorization since their last admission to the US.
• The worker may begin working for the new employer as soon as the new I-129 is properly filed — or as of the requested start date on that petition, whichever is later.
• If the new I-129 is denied, the worker's portability-based employment authorization ends on the denial date. The worker may continue with the previous employer if the prior period of authorized stay is still valid.

Moving from Cap-Exempt to Cap-Subject Employment

A move from a cap-exempt employer (university, affiliated nonprofit, government research organization) to a cap-subject employer requires the new employer to go through the lottery process. The cap-subject I-129 must be based on a valid, selected registration. The beneficiary must have an October 1 start date or later. As long as the beneficiary continues their cap-exempt employment, they may begin concurrent cap-subject employment once the I-129 is properly filed.

The 60-Day Grace Period

If an H-1B worker is laid off, fired, voluntarily resigns, or otherwise ceases employment with their H-1B employer, they may have up to 60 consecutive days — or until the end of the H-1B validity period, whichever is shorter — to find new employment (through portability), change to another nonimmigrant status, or depart the US. This grace period was codified in USCIS regulations and applies to H-1B, L-1, O-1, and several other categories.

Critical points about the grace period:

• The worker cannot work during the grace period unless a new employer properly files an H-1B portability petition (at which point employment authorization arises from the pending petition, not from the grace period itself).
• The 60 days begin from the date employment ends — not from any government notice date.
• If the H-1B validity period expires before 60 days have elapsed, the grace period ends at the H-1B expiration date.
• The grace period does not accrue or restart — a worker who uses 30 days of grace time, then finds a new employer who files an I-129, and later loses that job does not get a new 60-day period based on the original termination event.

H-4 Spouses and H-4 EAD

The H-1B worker's spouse and unmarried children under 21 may obtain H-4 dependent status. H-4 is a pure dependent status — H-4 holders may not work unless they separately qualify for work authorization.

H-4 spouses of H-1B workers may apply for an Employment Authorization Document (EAD) if the H-1B principal meets either of two conditions: (a) is the beneficiary of an approved Form I-140 immigrant petition; or (b) has been granted H-1B status beyond the six-year limit under AC21 §§106(a) and (b). See the separate H-4 EAD article for the complete eligibility and filing details.

Frequently Asked Questions