H-1B — Specialty Occupation

Q: Are there any rules about salaries to be paid H-1B workers?

Yes. The employer must pay at least the /required wage,/ which is the higher of (a) the prevailing wage for the occupation in the area of employment, as determined under Department of Labor rules, or (b) the actual wage the employer pays other workers with similar duties and qualifications. This obligation is set through the Labor Condition Application and applies for the duration of the H-1B employment.

This is the best place to prepare for your initial consultation with our attorneys. Here, you can learn more about the requirements and considerations for obtaining a specific type of visa, as well as find answers to the most frequently asked general questions.

Knowledge Center

H-1B

Basics

The H-1B is a temporary work visa for professionals employed in a specialty occupation: a role that ordinarily requires at least a bachelor’s degree in a directly related field. It must be sponsored by a U.S. employer, which files the petition and commits to paying the higher of the prevailing wage or the wage it pays its own comparable employees. Most new H-1Bs are subject to an annual numerical cap and can be filed only after the employer’s electronic registration is selected, although universities and certain affiliated and research nonprofits are cap-exempt and may file at any time.

Answers to Frequently Asked Questions About This Visa Type

This list of questions will help you prepare for your consultation with an attorney

What are the requirements for the sponsoring employer (U.S. company)?

In theory, any U.S. employer with a Federal Employer Identification Number can sponsor an employee for an H-1B visa. There is no minimum number of employees, minimum revenue, or minimum time in business. What the employer must do is offer a position that qualifies as a specialty occupation, obtain a certified Labor Condition Application from the Department of Labor, commit to paying the required wage for the full period of employment, maintain a Public Access File documenting compliance, and show that a bona fide specialty-occupation position is available as of the requested start date. In practice, small and newly formed companies face heightened scrutiny: USCIS may question whether the company genuinely needs a professional in the role, whether it can pay the required wage, or whether the employee will spend part of the time on non-professional duties. These are evidentiary issues rather than disqualifying ones, and we have helped many startups document their way to approval.

What are the requirements for the sponsored employee?

The employee must possess a university degree (a four-year bachelor’s degree or higher) in the same field that is generally required for jobs in the given occupation. In alternative, the employee may qualify for the job through a combination of education and experience, or through experience alone. Generally, three years of professional experience in the field are considered equivalent to one year of studying. 12 years of professional experience in the field in progressively responsible positions are considered as an equivalent to a four-year bachelor’s degree. People who possess degrees in other fields generally must demonstrate at least 6 years of professional experience in progressively responsible positions in the relevant field.

What are the requirements for the proposed job?

The job must be a specialty occupation — one that requires the theoretical and practical application of a body of specialized knowledge and, at minimum, a bachelor's degree (or its equivalent) in a directly related specific specialty. Common examples include software engineers, data scientists and data engineers, machine-learning and AI researchers, electrical and mechanical engineers, architects, accountants and financial analysts, biologists and chemists, physicians and other licensed clinicians, university instructors, and product or UX designers where the role requires a degree in a specific design discipline. The January 17, 2025 rule clarifies that a position may accept a range of qualifying degree fields, but each accepted field must be directly related to the job duties; a general degree with no further specialization is not sufficient.

Are there any rules about salaries to be paid H-1B workers?

Yes. The employer must pay at least the "required wage," which is the higher of (a) the prevailing wage for the occupation in the area of employment, as determined under Department of Labor rules, or (b) the actual wage the employer pays other workers with similar duties and qualifications. This obligation is set through the Labor Condition Application and applies for the duration of the H-1B employment.

What are the "H-1B Cap" and "H-1B Lottery"?

New cap-subject H-1Bs are limited to 65,000 per year (regular cap) plus 20,000 for holders of U.S. master's or higher degrees. Since fiscal year 2021, there is a mandatory electronic registration process: employers electronically register each beneficiary during a registration window that opens in March, and USCIS then selects from the registrations. Only those whose registrations are selected may file an H-1B petition, generally during a filing window that opens April 1. Beginning with fiscal year 2025, selection is "beneficiary-centric" (conducted by unique individual rather than by number of registrations) to curb gaming through multiple registrations. Under a final rule effective February 27, 2026, USCIS now uses a weighted selection process that favors higher wage levels, while still allowing selection at all wage levels.

Are there H1-B petitions that are exempt from the quota and do not have to participate in the H1-B lottery?

Yes, some H-1B petitions are exempt. First of all, most people who’ve had H-1B visas before are exempt from the quota. For example, a person who is currently in H-1B status working for another employer is normally exempt from the quota. In addition, the following categories of employers are exempt from the H-1B quota: most institutions of higher education, nonprofit organization or entity related to or affiliated with an institution of higher education, nonprofit research organization or a governmental research organization.

What is the longest I can stay in the United States with the H1-B visa?

The initial approval of the petition is for a maximum of three years. Generally, a foreign worker cannot remain in H-1B status for more than six years. If the maximum time has been reached, the foreign worker has to leave the United States and remain outside of the country for at least 12 months. After that the person will be eligible for a new H-1B 6-year term, but the petition on their behalf will be subject to the H-1B annual quota. There are exceptions to this rule for employees who are being sponsored for permanent residence by their employer and have a labor certification or an employment-based immigrant petition filed on their behalf.

I am an entrepreneur who founded a company in the United States. Can I apply for an H-1B using my own company as an employer?

Yes, this is now expressly permitted. The H-1B rule effective January 17, 2025 allows a beneficiary who has a controlling (including majority) interest in the petitioning company to obtain H-1B status, subject to conditions: you must perform specialty-occupation duties a majority of the time (some incidental owner/operator duties are allowed), and the validity of the initial petition and the first extension is limited to 18 months each. The older "employer-employee relationship" framework that treated owner-founders as ineligible has been superseded.

Can H1-Bs work part-time?

Yes, as long as the petition is filed and approved for part-time employment.

Can H-1Bs be 1099 contractors?

No, an H-1B worker should be a W-2 employee.

Can I change employers while on H-1B?

Generally, yes, provided that the new employment satisfies all H-1B requirements. If you were previously admitted in H-1B and a new employer files a proper, non-frivolous H-1B petition before your current status expires, you may usually begin working for the new employer as soon as the petition is filed (“H-1B portability”). However, in many cases it is still safer to request premium processing and wait for the approval before switching jobs.

What is "cap-gap"?

"Cap-gap" automatically extends an eligible F-1 student's status (and any work authorization) when a timely, cap-subject H-1B change-of-status petition is filed, bridging the “gap” until the H-1B takes effect. Under the current rule, that automatic extension runs until April 1 of the relevant fiscal year (or the H-1B start date, if earlier).

Can I work for more than one employer on H-1B at the same time?

Yes, you can hold "concurrent" H-1B employment, with each employer filing its own H-1B petition.

Can my spouse and children come with me on an H-1B?

Yes. They may hold H-4 status for the same period as your H-1B, and H-4 children may attend school. An H-4 spouse may apply for an employment authorization document (EAD) only after you reach certain green-card milestones — an approved Form I-140, or an H-1B extension beyond the six-year limit based on a long-pending PERM or I-140. Until one of those is in place, an H-4 spouse cannot work.

What happens to my H-1B status if I am laid off?

You generally have up to 60 consecutive days — or until the end of your authorized stay, if that is shorter — to have a new employer file an H-1B petition, change to another status, or depart. Because H-1B portability lets you begin work as soon as a new, non-frivolous petition is filed, the practical goal is to get that petition filed inside the grace period. Your H-4 dependents hold status for the same period.

Should the petition request a change of status, or should I apply at a consulate?

If you are already in the United States in a valid status, the petition can ask USCIS to change your status here, so you do not have to travel. If you are abroad, the petition is approved first and you apply for the H-1B visa at a U.S. consulate. A change of status gives you H-1B status but not a visa, so you will still need a consular appointment before your next re-entry.

Can I pursue a green card while on H-1B?

Yes. H-1B is a “dual intent” category, so a pending or approved immigrant petition does not undermine your extensions or your admission at the border. H-1B also suitable to bridge long green-card waits, because AC21 permits extensions beyond the usual six-year maximum once a PERM application or I-140 has been pending or approved long enough.

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