H-1B Specialty Occupation Visa

H-1B Visa Qualifications

To qualify for H-1B classification, both the offered position and the applicant must meet specific requirements set by U.S. immigration law.

Specialty Occupation Criteria

The offered role must qualify as a specialty occupation, meaning it requires:

• Theoretical and practical application of a body of highly specialized knowledge; and
• Attainment of at least a U.S. bachelor’s degree or higher (or its equivalent) in a directly related field as a minimum for entry into the occupation.

In addition, the position must meet at least one of the following criteria:

• A bachelor’s degree or higher in a directly related specialty is normally the minimum requirement for entry into the role;
• Parallel positions in similar organizations in the U.S. normally require a bachelor’s degree or higher in the specific specialty;
• The employer normally requires a bachelor’s degree or higher for the role; or
• The nature of the job duties is so specialized, complex, or unique that they are typically associated with someone who has attained at least a bachelor’s degree in a directly related specialty.

Applicant Qualifications

Applicants seeking to work in a specialty occupation must meet one of the following:

• Hold a U.S. bachelor’s degree or higher in the specific specialty required by the role;
• Hold a foreign degree equivalent to a U.S. bachelor’s or higher degree in the specialty;
• Possess an unrestricted state license, registration, or certification authorizing full practice of the specialty occupation in the state of intended employment; or
• Demonstrate a combination of education, specialized training, and progressively responsible experience equivalent to the completion of a U.S. bachelor’s degree in the specialty, with recognition of expertise through progressively responsible positions directly related to the field.

Labor Condition Application (LCA)

Before submitting Form I-129, Petition for a Nonimmigrant Worker, to U.S. Citizenship and Immigration Services (USCIS), the prospective employer must first obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL). The LCA requires the employer to attest that:

• The H-1B worker will be paid the higher of the prevailing wage for the occupation in the geographic area of employment or the wage paid to similarly qualified U.S. workers;
• The H-1B worker’s employment will not adversely affect the working conditions of similarly employed U.S. workers; and
• There is no ongoing strike or lockout in the occupational classification at the place of employment.

The filing of an LCA alone does not establish that the role qualifies as a specialty occupation — USCIS makes this determination during the petition adjudication process.

Petition Requirements

The H-1B petition must be filed by a U.S. employer or agent on behalf of the applicant. Beneficiaries cannot self-petition.

The H-1B Lottery and Electronic Registration Process

Most H-1B petitions are subject to an annual numerical limitation, commonly referred to as the H-1B cap. Each fiscal year, USCIS makes available 65,000 H-1B visas, with an additional 20,000 reserved for applicants holding a U.S. master’s degree or higher from a qualifying institution. However, petitions filed on behalf of individuals employed by or with offers from institutions of higher education, affiliated nonprofit entities, or nonprofit/governmental research organizations are cap-exempt and not subject to these annual limits.

Electronic Registration Requirement

Since 2020, USCIS has required employers seeking to file cap-subject H-1B petitions to complete an electronic registration during a designated registration period, typically at least 14 calendar days each fiscal year. Each registrant must provide basic employer details along with unique identifying information for each prospective beneficiary, including valid passport or travel document details. Importantly, each beneficiary can only be registered once under a single passport or travel document, which must be the one they intend to use when entering the United States if granted an H-1B visa.

Only beneficiaries selected during the lottery may have a petition filed on their behalf. Once the initial registration window closes, USCIS conducts the lottery selection. If selected, the employer receives a registration selection notice authorizing them to submit a full H-1B petition for that beneficiary. Without a valid, selected registration, a cap-subject petition will not be considered properly filed.

The H-1B Petition and Visa Process

The process of obtaining an H-1B visa involves several steps, beginning with the employer and concluding with the foreign national’s admission to the United States in H-1B classification. Each step must be carefully followed to ensure compliance with U.S. immigration regulations.

Step 1: Labor Condition Application (LCA)

For H-1B petitions based on specialty occupations or fashion model positions, the U.S. employer must first submit a LCA to the Department of Labor (DOL) for certification. The LCA demonstrates that the employer will pay the prevailing wage and that hiring the foreign national will not adversely affect the working conditions of similarly employed U.S. workers. Certification from the DOL must be obtained before the H-1B petition can be filed.

Step 2: Filing Form I-129 with USCIS

Once the LCA is certified, the employer must file Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The petition should include the certified LCA (when applicable), documentation showing that the position qualifies as a specialty occupation, and evidence that the beneficiary is qualified to fill the role. USCIS reviews the petition and may approve it, deny it, or request additional evidence (RFE) before making a final determination. Employers may opt for premium processing, which requires an additional fee but guarantees an initial response from USCIS within 15 business days.

Step 3: Consular Processing and Admission to the U.S.

If the petition is approved and the beneficiary is outside the United States, the next step is to apply for an H-1B visa at a U.S. consular post abroad. The visa interview allows a consular officer to confirm the facts of the petition and evaluate admissibility. An approved USCIS petition is considered prima facie evidence that the requirements have been met, but it does not guarantee visa issuance.

After visa approval, the foreign national must present themselves at a U.S. port of entry and apply for admission in H-1B status before U.S. Customs and Border Protection (CBP). Admission is at CBP’s discretion, and the officer will issue an I-94 Arrival/Departure Record reflecting the authorized period of stay.

H-1B Visa Validity, Status, and Length of Stay

An H-1B specialty occupation worker may generally be admitted for an initial period of up to three years. This admission can typically be extended for an additional three years, for a maximum stay of six years. If the beneficiary holds a controlling interest in the petitioning company—defined as ownership of more than 50% of the entity or majority voting rights—USCIS will limit both the initial petition and the first extension to validity periods of no more than 18 months each.

The validity of the H-1B visa itself may not exceed the validity period reflected in the reciprocity schedule for the beneficiary’s country of nationality. In practice, this means that a visa may be issued for the full petition period or for a shorter duration if the reciprocity schedule so dictates.

Consular posts may issue H-1B visas up to 90 days before the start date of employment listed on the Form I-797 approval notice. However, beneficiaries may only use the visa to apply for admission to the United States beginning ten days before the approved employment start date.

Upon admission, CBP will issue an I-94 record that governs the beneficiary’s period of authorized stay. In most cases, the I-94 reflects the petition validity period, plus up to ten days before the start date and ten days after the end date, though employment is only permitted during the validity of the petition itself.

Extensions of H-1B status may be requested by the petitioner using Form I-129. These extensions are generally granted in increments of up to three years, subject to the six-year total cap, although some exceptions exist for individuals pursuing permanent residence.

​H-4 Dependents of H-1B Visa Holders

Spouses and unmarried children under the age of 21 may accompany or later join an H-1B principal visa holder in the United States under the H-4 dependent visa category.

In most cases, H-4 dependents are granted the same period of admission, visa validity, and limitations of stay as the H-1B principal. An exception arises when the principal’s visa is restricted under clearance validity rules, in which case H-4 applicants may still be issued visas valid for the maximum period allowed under the reciprocity schedule or petition validity.

Individuals in H-4 status are permitted to study full-time or part-time in the United States. While most H-4 dependents cannot work, certain H-4 spouses of H-1B nonimmigrants may apply for employment authorization by filing Form I-765 with USCIS. This eligibility applies only if the H-1B principal is the beneficiary of an approved Form I-140 (Immigrant Petition for Alien Worker) or has been granted H-1B status under sections 106(a) or 106(b) of the American Competitiveness in the Twenty-first Century Act (AC21).

Schedule an H-1B Visa Consultation

Navigating the H-1B visa process requires careful planning, from preparing the labor condition application to addressing lottery registration and petition requirements. At Barella Global, our immigration lawyer provides tailored guidance to employers and foreign professional. Contact us today to schedule a consultation and learn how we can assist with your H-1B visa case. Alternatively, you can book a consultation online through our booking platform.