H-1B Visa Case Management

General Qualifications for an H-1B Petition

H-1B is a nonimmigrant classification for specialty occupations: jobs that require the theoretical and practical application of a body of highly specialized knowledge and at least a bachelor's degree in a specific specialty, or its equivalent. The U.S. employer is the petitioner. It obtains a certified Labor Condition Application from DOL and files Form I-129 with USCIS.

Most new H-1B employment is subject to an annual cap of 65,000, plus 20,000 for beneficiaries with a U.S. master's or higher degree. Cap-subject employers must first submit an electronic registration and be selected. Institutions of higher education, their affiliated nonprofits, nonprofit research organizations and government research organizations are cap-exempt.

Initial admission is generally up to 3 years, extendable to a 6-year maximum. USCIS regulations allow extensions beyond 6 years in certain cases, such as when a labor certification or immigrant petition was filed at least 365 days earlier, or an approved EB petition is waiting on visa availability.

Clients This Case Type Helps

• Employers hiring degreed professionals in specialty occupations
• Universities and affiliated nonprofits filing cap-exempt petitions
• F-1 graduates moving to H-1B after a selected registration
• Employers extending or amending petitions for current H-1B workers
• New employers filing change of employer petitions
• H-1B workers on a green card path who need time past 6 years

General Qualifications

• The position must be a specialty occupation that requires at least a bachelor's or higher degree in a directly related specific specialty, or its equivalent.
• The worker must hold that U.S. degree, a foreign equivalent, an unrestricted state license to fully practice, or equivalent education, training and experience.
• If a state license is required, it generally must be held before approval, not at filing.
• The employer must obtain a DOL-certified LCA (Form ETA-9035/9035E) and submit it with Form I-129.
• The employer must pay at least the wage paid to similarly qualified workers, or the prevailing wage for the area if that is higher.
• Working conditions must not adversely affect similarly employed U.S. workers, and notice of the LCA must be given to the union or posted.
• Cap-subject petitions need a selected registration, and a prospective petitioner may submit only one registration per beneficiary per fiscal year.

Consultation Screening Questions

1. Does the job require a degree in a specific specialty, and what are the duties, worksite and wage level?
2. What degree does the worker hold, from which country, and is a credential evaluation or state license needed?
3. Has the worker been counted against the H-1B cap before, and how much H-1B or L-1 time has been used?
4. Is the employer cap-exempt, such as a university, an affiliated nonprofit or a nonprofit research organization?
5. Will the worker be placed at a third-party client site or work at more than one location?
6. What is the worker's current status and I-94 date, and are there gaps, unauthorized work or overstays?
7. Does the worker own more than 50% of, or hold majority voting rights in, the petitioning company?
8. Has a PERM or I-140 been filed or approved that could support an extension beyond 6 years?

General information based on USCIS and other government guidance. Eligibility depends on each client’s facts; this is not legal advice.