What is an H-1B visa?

The role must normally require at least a bachelor's degree, or its equivalent, in a specific field — and the worker must hold that degree or an accepted equivalent. Software engineering, accounting, architecture and medicine are typical; a role requiring any degree in anything generally is not.

Where someone lacks the degree, relevant professional experience can sometimes substitute, commonly assessed at three years of experience for each year of university education. That evaluation is done by a credentials service, not by the employer's judgement.

Congress sets an annual limit on new H-1B petitions: 65,000 under the regular cap, plus 20,000 reserved for holders of a US master's degree or higher. Demand has exceeded supply for many years, so USCIS runs an electronic registration period — usually in March — and selects registrations at random.

Only selected registrations may then file a full petition. Selection is not approval; the petition still has to be adjudicated on its merits.

Employment under a cap-subject petition begins on October 1, the start of the government's fiscal year. That gap between selection in spring and a start in autumn is why H-1B hiring runs on a longer planning horizon than other recruiting.

Some employers are cap-exempt — universities, affiliated non-profit organisations, and certain research institutions — and can petition at any time without entering the lottery. Workers employed by a cap-exempt employer who later move to a cap-subject one generally do have to go through the cap.

An initial approval is usually for up to three years, extendable by a further three, for a maximum of six years in H-1B status.

Beyond six years, extensions are possible in defined circumstances connected to an ongoing permanent residence process — for example where a labour certification or immigrant petition has been pending long enough, or where an approved immigrant petition exists but a visa number is not yet available. These are the provisions that keep people from having to leave mid-process, and they depend on specifics worth getting advice on.

Time spent outside the United States can sometimes be recaptured, which matters to people who travel frequently.

H-1B status is tied to the sponsoring employer, but it is portable. A new employer files a petition, and under portability rules the worker may generally begin working for the new employer once that petition is properly filed and received, rather than waiting for approval.

A change of job location, job duties or terms may require an amended petition, and for staffing firms a new worksite usually requires a new Labor Condition Application first. Moving a consultant to a client in a different metropolitan area without that paperwork is a common and avoidable compliance failure.

If employment ends, there is a limited grace period — up to 60 days or the end of the authorised period, whichever is shorter — to find a new sponsor, change status or depart.

Before petitioning, the employer files a Labor Condition Application attesting to paying at least the prevailing wage for that occupation and location, and to not adversely affecting the conditions of existing workers. Those attestations are enforceable for the duration of employment.

That includes paying the required wage when there is no billable work. Benching an H-1B consultant without pay between assignments is a violation, and back wages are the standard remedy — a point that matters particularly to staffing firms carrying consultants between placements.

Spouses and unmarried children under 21 may hold H-4 status. H-4 spouses are not automatically permitted to work; employment authorisation is available to some H-4 spouses where the H-1B holder has reached a defined stage of the permanent residence process, and requires a separate application.