Non-Immigrant Work Visa

H-1B Specialty Occupations (Cap-Subject)

This nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year, with an additional 20,000 petitions exempt for beneficiaries with a master's degree or higher from a U.S. institution of higher education.

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Eligibility Requirements

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Regulatory Criteria

Specialty Occupation Definition

The occupation requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in a directly related specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Examples
  • A U.S. bachelor's or higher degree in a directly related specific specialty is normally the minimum entry requirement
  • A U.S. bachelor's or higher degree is normally required to perform job duties in parallel positions in the industry
  • The employer normally requires a bachelor's degree to perform the job duties
  • The duties are so specialized, complex, or unique that knowledge is normally associated with a bachelor's degree

Labor Condition Application (LCA)

Prospective employers must obtain a certification of an LCA from the DOL. The employer must attest to compliance with labor requirements including wage and working condition requirements.

Examples
  • Pay the H-1B worker no less than the wage paid to similarly qualified workers or the prevailing wage, whichever is greater
  • Provide working conditions that will not adversely affect other similarly employed workers
  • No strike or lockout at the place of employment at the time of the LCA
  • Notice of the LCA filing has been given to the union representative or posted at the place of employment

H-1B Cap and Lottery

The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year. An additional 20,000 petitions for beneficiaries with a U.S. master's degree or higher are exempt from the cap. Electronic registration is required for cap-subject petitions.

Examples
  • 65,000 regular cap available each fiscal year
  • 20,000 additional for U.S. master's degree or higher (master's cap)
  • Electronic registration required during registration period (typically March)
  • If selected in lottery, employer may file full H-1B petition
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Application Process

LCA Certification

Employer submits Labor Condition Application (Form ETA-9035) to DOL for certification.

H-1B Registration

Employer submits electronic registration during registration period (typically March).

Lottery Selection

If cap is reached, beneficiaries are randomly selected from properly submitted registrations.

I-129 Filing

If selected, employer files Form I-129 with USCIS along with certified LCA.

USCIS Adjudication

USCIS reviews petition and may issue RFE or approve.

Visa/Admission

If abroad, apply for H-1B visa at consulate; seek admission at port of entry.

Employment Begins

Start work on October 1st (or later for cap-subject cases) or upon approval date.

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Key Benefits

Dual intent allowed - can pursue permanent residency while on H-1B
Initial admission period of up to 3 years, generally extendable to 6 years total
Extensions beyond 6 years possible with approved I-140 or pending labor certification (365+ days)
Spouse (H-4) and children under 21 may accompany; H-4 may be eligible for work authorization
Portability allows changing employers upon filing of new petition
Premium Processing available for faster adjudication
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Documents Needed

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Frequently Asked Questions

What is the H-1B cap?
The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year. An additional 20,000 petitions filed on behalf of beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are exempt from the cap (known as the master's cap).
How long can I stay in H-1B status?
You may generally be admitted for up to 3 years initially. This may be extended for an additional 3 years, for a total of 6 years. Extensions beyond 6 years are possible if you are the beneficiary of an approved immigrant visa petition or if at least 365 days have passed since a labor certification or immigrant petition was filed on your behalf.
Can I change employers on H-1B?
Yes. If you are changing H-1B employers, you may begin working for the new employer as soon as they properly file a non-frivolous Form I-129 petition on your behalf, or as of the requested start date, whichever is later. This is called H-1B portability.
What happens if I lose my job?
If you are laid off, fired, quit, or otherwise cease employment, you may have up to 60 consecutive days or until the end of your authorized validity period, whichever is shorter, to find new employment, change status, or depart the country.
Can my spouse work in the U.S.?
Your spouse may enter in H-4 status. Certain H-4 dependent spouses may be eligible for employment authorization if the H-1B worker is the beneficiary of an approved I-140 immigrant petition or has been granted an H-1B extension based on certain provisions.
What is the difference between cap-subject and cap-exempt?
Cap-subject petitions are subject to the annual 65,000 limit and require lottery registration. Cap-exempt employers include institutions of higher education, affiliated nonprofit entities, nonprofit research organizations, and government research organizations - their petitions are not subject to the numerical cap.
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Fees

Attorney Fee for I-129$5,400 (Initial $2,900; $1,250/month)
USCIS I-129$1,385/$695
Premium (optional)$2,805
Fraud Prevention Fee$500
Asylum Program$600/$300/$0
Attorney Fee for DS-160$500 per person
Embassy Fee$205

Fees are estimates and may change. Contact us for a quote for your specific case.

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For informational purposes only — not legal advice · Consult an attorney for your specific situation.