The H-1B visa is for use by “specialty occupation” workers coming to the United States for a limited time. This means that the offered job must require a specific, four-year university degree, and the person being sponsored needs to have a relevant degree or the equivalent experience.
It sounds simple enough, but there are many nuances and pitfalls for the unwary. The following provides a brief overview and key points regarding H-1B visas, directed in particular toward U.S. employers who might wish to sponsor a foreign worker.
How Annual Cap and Quota Limit the Availability of H-1B Visas
The first thing to know is whether the H-1B visa petition you wish to file will be subject to the annual quota, also called the “H-1B cap.” There are only 85,000 (65,000 base amount, 20,000 additional for persons with U.S. graduate degrees) visas available each federal fiscal year, which runs from October to the following September.
The visas often run out quickly, typically during the March “lottery” filing window, when employers can submit online registrations to request a visa slot for a prospective employee. If selected, the employer then has until June 30 to submit a visa petition (on USCIS Form I-129) to USCIS. In recent years, the odds of having an entry selected have been around 20%.
The H-1B cap does not apply to jobs at universities and “affiliated nonprofits.” Affiliated nonprofits are organizations that have a connection to a university, either through shared ownership and control or other formalized arrangement. Classic examples are teaching hospitals with a residency training program for medical students and primary and secondary schools that have a student teaching program for university students majoring in education.
Other employers that can take advantage of the university and affiliated nonprofit exemption are organizations that will place the H-1B worker at a university or affiliated nonprofit. Key to those arrangements is the requirement that employee’s responsibilities must further the educational or research mission of the university or nonprofit. For example, if a private physician practice group assigns a physician to work at a teaching hospital, the practice group needs to show how the physician will be actively engaged in training residents as part of the daily work.
The H-1B cap also does not apply to someone who already has an H-1B visa or status and is changing jobs with the same or a different employer or extending H-1B status for continued employment.
Employers exempt from the H-1B cap can submit petitions any time to hire an H-1B worker. An added benefit for the H-1B worker is the possibility of accepting concurrent H-1B employment with a cap-subject employer. For example, a physician could work as a professor at a university or teaching hospital and pick up a second job to provide clinical care to patients of a private practice.
H-1B petitions that are subject to the H-1B cap include:
- most private sector organizations hiring someone from abroad who has not had an H-1B visa before
- F-1 students whose student visa-based work authorization will be expiring, and
- H-1B workers changing from a cap-exempt employer (such as a university) to a cap-subject employer.
All of these petitions will require one of the limited number of visas. See below for more on the H-1B lottery.
H-1B Qualifications: Basic Job and Degree Requirements
Only “specialty occupation” jobs qualify for H-1B visas. For many occupations, such as accountants, most computer professionals, engineers, financial analysts, and scientists, it is normally fairly simple to qualify for an H-1B visa. It has long been understood and accepted that you need at least a four-year university degree for those jobs.
The “problem” jobs have been marketing or new or evolving jobs, such as an e-commerce merchant, where there is no clear standard for what type of formal education, if any, one needed in order to do the job.
How Does a Would-Be H-1B Employer Demonstrate the Job’s Degree Requirement?
The primary ways to show that a job requires a specific degree are to explain that your job is so complex that someone doing it needs a degree, show that you have a history of hiring only persons with specific degrees for the job, or provide evidence, such as job postings, that the industry norm is to require a specific degree.
For the first, you need to explain the job in detail and provide any supporting documents, such as product brochures or technical literature. A letter from an industry observer, such as a chamber of commerce, or a professor in the field can help. Showing hiring practices typically requires listing all previous hires and providing copies of diplomas and transcripts.
For the last category, USCIS considers only job postings from similar organizations. For example, if you’re making the case for a Computer Programmer at a software development company with 50 employees, the job postings must be from software development companies of about 50 employees. In this example, a job posting from a 10,000-employee hospital system would not be acceptable to USCIS to show that other employers also require a specific degree.
The Occupational Outlook Handbook’s Role in Setting Job Requirements
In addition to considering information and documents submitted with your petition, USCIS’s primary resource for evaluating whether a job requires a degree is the Occupational Outlook Handbook, or “OOH.” The OOH is a Department of Labor publication that includes a wide range of occupations and has a specific review of education and experience qualifications for each. It sounds simple. It’s not. USCIS has been known to misquote the OOH to make its case that a job does not require a degree.
USCIS also makes incongruous statements such as “It is noted that, on the printout from the OOH you submitted as evidence, you circled and highlighted the passage to the education of most computer programmers, [where it states, “Most computer programmers have a bachelor’s in computer science or a related subject.”] However, you did not address the passage stating that some employers hire programmers with Associates degrees.”
Let’s break that down. The standard for evidence that's considered convincing in immigration matters is a “preponderance.” That means slightly more than 50%. If the OOH says that “most” employers require computer science degrees, isn’t “most” more than 50%? Why would anyone need to “address the passage” concerning “some” employers? If most require a specific degree, we’ve already met the burden of proof. But this doesn’t stop USCIS from sending out outlandish requests, which are impossible to explain other than as an effort to intimidate employers and try to deny H-1B petitions.
The takeaway here is to review the OOH and be prepared for anything. This also is an appropriate place to mention the influence of presidential politics on immigration adjudication standards. Depending upon the pro- or anti-immigration policy of the administration, there can be wide swings in which jobs qualify for H-1B visas.
Proving That a Particular Employee Has the Needed Degree or the Equivalent
Once you show that your open position requires a specific degree, the easiest way to show your employee qualifies for an H-1B specialty occupation is to provide a copy of the employee’s relevant bachelor’s or higher degree from a college or university in the United States. If the degree is from outside the United States, you might need to obtain a “credentials evaluation” from one of the many companies that work in this cottage industry to determine the U.S. equivalency of the foreign degree. Several countries offer three-year bachelor’s degrees that would not qualify as a U.S. bachelor’s degree.
If the degree program is only three years, or if the employee doesn’t have any university education, there is another way to get your petition approved. USCIS uses a three-for-one formula, whereby three years of “progressive” experience counts as one year of university studies. Progressive means that the work increased in complexity and responsibility over time, such as from a Junior to Senior or from doing basic to more challenging projects.
You would need detailed letters documenting your employee’s employment history. You then can engage another type of credentials evaluation firm that will work with a university professor to determine how the experience stacks up to university studies. The final report will outline how the progressive experience has provided the knowledge that one typically would obtain during a four-year bachelor’s course of study.
Nuts and Bolts of H-1B Petition Processing
Once you have sorted out the type of petition, made sure you can document that the job requires a specific degree, and documented the employee’s qualifications, the remaining nuts and bolts are to:
- determine the “actual” and “prevailing” wages for the job
- obtain a certified “Labor Condition Application” from the Department of Labor, and
- submit your petition to USCIS.
Covering these topics in depth is beyond the scope here, so this is meant to provide only a high-level overview.
Determining Actual and Prevailing Wage
The “actual wage” in the H-1B world is the wage paid to an employer’s workers in the same job and location. If you have five civil engineers in New York City, and you pay them $50,000 a year, that is your actual wage.
The prevailing wage is the wage paid to all workers in an occupation in a particular location. The most common ways to determine the prevailing wage are to submit a formal request to the Department of Labor (DOL), review the DOL’s wage data directly, or purchase a private wage survey from a firm such as Mercer. You can submit your request to the DOL online via its “FLAG” portal. The DOL wage data is available on its Online Wage Library site. For a wage survey, you simply call or use an online portal for the survey company to purchase the wage data.
For the H-1B process, the employer must pay the higher of the actual or prevailing wage. In the above example, if the prevailing wage were $55,000/year, the employer would need to pay the H-1B worker $55,000/year. Conversely, if the prevailing wage were $45,000/year, the employer would need to pay the H-1B worker $50,000/year.
Submitting the LCA
After you have established the prevailing wage, the next step is to prepare and submit the Labor Condition Application (LCA) through the same FLAG portal you would use for a prevailing wage request. The DOL normally sends the approved, or “certified” LCA back via email about a week later. Then it’s time to prepare and submit the petition.
Submitting the H-1B Petition to USCIS
Once you have the LCA, you submit your I-129 Petition, available at the USCIS website, along with all the required, corresponding forms, supporting documents, and filing fees to USCIS.
WARNING: In September of 2025, the Trump Administration announced that it was adding $100,000 to the amount employers must pay upon filing a new H-1B petition. The logistical and other details are still emerging, and the is already the subject of lawsuits. It does not affect people who had H-1B petitions on file before the announcement date.
You can submit your H-1B petition electronically through the USCIS online portal. If you file by mail, be sure to send the petition to the correct address, as there are several different addresses depending upon the type of petition. Check the USCIS website for the most current information.
As noted above, this is a very basic overview. If you’re not familiar with the H-1B petition process, hire an attorney with immigration experience to help you.
For petitions that are not subject to the annual H-1B cap (university and affiliated nonprofit employers, job change, employer change), you can submit the petition any time.
Dealing With the Annual H-1B Lottery
For petitions that are subject to the H-1B cap, you need to submit an electronic registration in March. You’ll need to have an online account with USCIS to do this. Each year USCIS updates its guidance and provides the lottery filing window, so be sure to check the site for the latest information. The submission period usually is early March, and USCIS makes selections by the end of the month.
Employers then have until June 30 to submit their H-1B petitions. If USCIS has not received and approved sufficient petitions for the annual 85,000 quota, it will run a subsequent lottery selection round.
USCIS uses historical data to project how many lottery selections are needed to reach the quota. It usually green-lights over 100,000 registrations, even with only 85,000 total visas available. Some employers “win” the lottery but choose not to submit a petition. Other employers submit petitions that USCIS later denies. In looking at prior years, USCIS aims to select enough lottery entries in the first round, so as to avoid needing to run another round in July or later.
When to Hire an Immigration Attorney
As noted, the goal here is to highlight what types of jobs qualify for H-1B visas and provide some basics on when and how to submit petitions to USCIS. H-1B petitions have become some of the most complex immigration cases. If you’re not handling them all the time, the best thing you can do is talk to a lawyer before getting started.