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H-1B Specialty Occupation Visa

The employer-sponsored temporary work visa for jobs that require a specialized degree: the labor condition application, the annual cap and lottery, the employer's wage duties, and what happens if the job ends.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of Immigration law firms.

What it means

The H-1B is a temporary (nonimmigrant) work status for a specialty occupation: a job that requires the theoretical and practical application of a body of highly specialized knowledge and at least a bachelor's degree, or its equivalent, in the specific specialty. The worker cannot apply alone; an employer sponsors the worker. First the employer files a labor condition application with the Department of Labor, attesting that it will pay at least the higher of the actual wage it pays similar workers and the prevailing wage for the job in that area, and that it has notified its workforce. Then it files a petition on Form I-129 with U.S. Citizenship and Immigration Services.

New H-1B petitions for most private employers are subject to an annual numerical cap, with a separate allocation for people with U.S. master's or higher degrees, and demand far exceeds supply, so USCIS runs an electronic registration and random selection each spring before petitions can be filed. Universities, their affiliated nonprofits, and nonprofit and government research organizations are exempt from the cap. Status is granted for an initial period and can be extended up to an overall limit set by statute, which can be extended further for a worker whose employer has started the green card process. H-1B workers may intend to immigrate later, and many move to a green card through employment sponsorship. Recent executive actions have added requirements for some new petitions, so check current USCIS guidance before relying on older information.

The law protects the worker as well as the labor market. The employer must pay the required wage even when it has no work for the worker (no "benching"), may not make the worker pay the employer's petition costs or a penalty for leaving early, and must offer the reasonable cost of return transportation if it dismisses the worker before the end of the authorized stay. A worker can change employers once a new employer files a petition. A worker whose job ends has a short grace period to find a new sponsor, change status or leave. Complaints about wage violations go to the Department of Labor's Wage and Hour Division.

Where this comes from

Immigration and Nationality Act, as codified in Title 8: H-1B classification, 8 U.S.C. § 1101(a)(15)(H)(i)(b); specialty occupation defined, § 1184(i)(1); labor condition application, § 1182(n); numerical limits and exemptions, § 1184(g)(1)(A), (g)(5); period of admission, § 1184(g)(4) and American Competitiveness in the Twenty-first Century Act, Pub. L. 106-313, §§ 104(c), 106(a); dual intent, § 1184(h); portability, § 1184(n). Regulations: 8 C.F.R. § 214.2(h) (registration and selection, § 214.2(h)(8)(iii); return transportation, § 214.2(h)(4)(iii)(E)); grace period, § 214.1(l)(2); Department of Labor, 20 C.F.R. Part 655, Subparts H-I (wage obligations and nonproductive time, § 655.731(c)(7); prohibited fees and penalties, §§ 655.731(c)(10)(i)-(ii)).

When people hire a lawyer for this

The employer's immigration lawyer prepares the H-1B petition and represents the employer, not the worker. A worker may want their own immigration lawyer when changing jobs, after a layoff, when the employer is not paying the required wage, or when planning the move to a green card, because the timing of each step decides whether status is kept. A worker owed wages can also contact the Department of Labor directly.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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