H-1B Visa Lawyer for U.S. Employers and Skilled Professionals
The H-1B specialty occupation classification allows qualifying U.S. employers to hire foreign professionals for positions requiring highly specialized knowledge and a bachelor’s or higher degree in a directly related specific specialty, or its equivalent. Arvian Immigration assists employers and professionals with H-1B eligibility, cap and cap-exempt cases, Labor Condition Applications, Form I-129 petitions, employer changes, extensions, amendments and USCIS Requests for Evidence. We review the actual job duties, degree requirements, wage, work location and immigration history before determining the appropriate filing strategy.
H-1B Visa Requirements: Who Qualifies?
H-1B eligibility depends on the offered position, the foreign professional’s qualifications and the employer’s compliance with H-1B rules. A professional job title or university degree alone does not establish eligibility.
The position must qualify as a specialty occupation
The job must require the theoretical and practical application of highly specialized knowledge and normally require at least a bachelor’s or higher degree in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation.
A position does not necessarily have to accept only one academic major. More than one degree field can potentially qualify when each field provides specialized knowledge directly related to the duties. The petition should explain that connection rather than rely on the job title alone.
The professional must meet the position requirements
A beneficiary may qualify through an appropriate U.S. degree, a qualifying foreign equivalent, or another form of educational and professional equivalency recognized under the H-1B regulations. When the profession requires a state or other professional license, the licensing requirements must also be addressed.
The employer must offer a real qualifying position
The filing must reflect the actual job. Duties, education requirements, wage, occupational classification, work location and business evidence should be consistent throughout the petition. Depending on the employer and position, supporting evidence may include organizational information, project records, reporting structure, contracts or other documentation showing the nature of the proposed work.
H-1B is not limited to technology jobs. Qualifying positions may exist in engineering, finance, healthcare, architecture, research, education, analytics, specialized business roles and many other fields when the specialty-occupation requirements are met.
H-1B Cap-Subject and Cap-Exempt Petitions
Before preparing an H-1B filing, it is important to determine whether the case requires an H-1B number under the annual cap or qualifies for an exemption.
Cap-subject H-1B employment
The statute generally provides 65,000 H-1B numbers under the regular cap, subject to statutory allocations, and an additional exemption for up to 20,000 qualifying beneficiaries who earned a master’s or higher degree from an eligible U.S. institution of higher education.
When the number of eligible registrations exceeds the available numbers, USCIS applies the registration and selection procedure in effect for that cap season. Selection allows the employer to file the corresponding cap-subject petition. It does not establish that the position, employer or beneficiary satisfies the substantive H-1B requirements.
Employment that may be cap-exempt
Qualifying employment by an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization or a governmental research organization may be exempt from the annual cap. Certain beneficiaries who were previously counted against the cap may also qualify for later H-1B filings without a new cap selection.
In some cases, a beneficiary does not have to be directly employed by the qualifying institution or organization. A potential cap exemption may apply when the beneficiary spends at least half of the work time performing duties for a qualifying institution, organization or entity and those duties directly support or advance its qualifying higher-education, nonprofit-research or governmental-research purpose. The analysis turns on the actual duties and relationship to that qualifying purpose, not merely the physical work location.
Nonprofit status alone is not enough. The organization or employment arrangement must meet the applicable H-1B cap-exemption requirements. The exemption should be analyzed and documented before filing.
How an H-1B Petition Is Prepared and Filed
The exact sequence varies for cap cases, cap-exempt petitions, employer changes, extensions and amendments. Most filings involve the following core steps.
Review the position and immigration history
We examine the proposed duties, minimum degree requirements, beneficiary credentials, wage, worksite, employer operations, current status and intended start date. At this stage, we identify issues involving the specialty occupation, licensing, cap eligibility, degree equivalency and maintenance of status.
Determine cap or cap-exempt strategy
A new cap-subject case follows the USCIS registration procedure applicable to that season. For other filings, the analysis determines whether the employer, employment arrangement or beneficiary’s previous H-1B history supports a cap exemption.
Prepare the Labor Condition Application
Before the H-1B petition is filed, the employer generally must obtain certification of a Labor Condition Application, Form ETA-9035/9035E, from the U.S. Department of Labor. The LCA addresses the occupational classification, wage, area of intended employment and required employer attestations.
File Form I-129 and supporting evidence
The USCIS filing normally includes Form I-129, the required H classification documentation, the certified LCA and evidence concerning the employer, the offered job, the beneficiary’s qualifications and the proposed employment.
USCIS adjudication
USCIS may approve the petition or request additional evidence if the submitted record does not establish eligibility. Premium processing may be available for eligible filings and provides expedited USCIS action under the applicable rules. It does not lower the legal standard or guarantee approval.
Status or visa processing
Depending on the beneficiary’s circumstances, an approved petition may support a change or extension of status in the United States or H-1B visa processing at a U.S. consular post abroad. USCIS petition approval does not by itself guarantee visa issuance or admission to the United States.
H-1B Wage and Employer Compliance Requirements
An H-1B employer’s obligations continue after the petition is filed. Wage, notice, recordkeeping, worksite and termination rules should be considered before the employee begins work.
Required wage
The employer generally must pay at least the higher of the actual wage paid to similarly employed workers with comparable experience and qualifications or the prevailing wage for the occupation in the area of intended employment.
Nonproductive time and benching
Wage obligations can continue during certain employer-caused periods when an H-1B employee is ready and able to work but productive work is not provided. An employer should not assume that an unpaid bench period eliminates the H-1B wage obligation.
Notice and public access records
Employers have notice and recordkeeping obligations connected with the LCA. Public access documentation generally includes the certified LCA and required wage-related and notice information. Records should be consistent with the employment described to DOL and USCIS.
H-1B-dependent and willful violator employers
Most H-1B employers are not required to recruit U.S. workers before filing. H-1B-dependent employers and employers subject to willful-violator rules, however, can have additional recruitment and non-displacement obligations when seeking to employ non-exempt H-1B workers. These requirements can include good-faith recruitment of U.S. workers, offering the position to an equally or better qualified U.S. applicant, and additional protections against displacement. Separate requirements can also apply when an H-1B worker is placed at another employer’s worksite.
Ending H-1B employment
When an employer ends H-1B employment before the approved period expires, it should address USCIS notification and any applicable obligation for the reasonable cost of return transportation. DOL wage liability may continue when the employment relationship has not been ended through a bona fide termination.
H-1B Transfers, Extensions and Changes in Employment
Changing H-1B employers
“H-1B transfer” is commonly used to describe a change of employer, but the new employer generally files its own H-1B petition. In qualifying portability cases, the professional may be authorized to begin work for the new petitioner after USCIS receives a properly filed petition rather than waiting for the final decision.
Portability should be reviewed in light of the employee’s current immigration status, previous H-1B approvals, I-94 record and timing of the new filing.
Extensions beyond the initial approval period
H-1B classification is generally granted in periods of up to three years and is ordinarily subject to a six-year maximum period of admission. Qualifying time outside the United States may sometimes be recaptured, and certain workers in the employment-based permanent residence process may qualify for H-1B extensions beyond the ordinary six-year limit.
Worksite changes
Moving an employee to a work location outside the area covered by the existing LCA can constitute a material change and may require a new LCA and an amended H-1B petition before work begins at the new location.
Not every location change requires an amendment. Different rules can apply to moves within the same area of intended employment and to qualifying short-term placements.
Changes in duties or other employment terms
A material change in the terms and conditions of the approved employment can require an amended or new petition. Employers should review significant changes in duties, occupational classification, work location or other material employment terms before implementing them.
Can a Founder or Business Owner Qualify for H-1B?
Potentially. H-1B regulations permit qualifying petitions in which the beneficiary has a controlling interest in the petitioning company. A beneficiary who owns more than 50 percent of the petitioner or holds majority voting rights may perform duties related to owning and directing the business, provided the beneficiary performs specialty-occupation duties for the majority of the time and the petition otherwise satisfies the H-1B requirements.
Founder cases require more than proof of company ownership. The filing should establish the operating business, the specialty-occupation position, the beneficiary’s qualifications and what the beneficiary will actually do for the company. Beneficiary-owner petitions are subject to specific regulatory conditions and should be evaluated separately from a conventional employee case.
H-1B Filing Fees and Employer Costs
The total cost of an H-1B matter depends on the type of filing, the employer, whether particular statutory fees apply and whether premium processing is requested. A new cap case, an employer-change petition and an extension may therefore have different government-fee structures.
Employers should also distinguish between government filing fees, legal fees and other business expenses. H-1B rules restrict an employer from shifting certain statutory fees and employer business expenses to the beneficiary. Wage deductions can also create compliance problems if they reduce the employee’s compensation below the required wage.
Government filing fees vary by petition type and employer circumstances and can change. The fees applicable to a specific H-1B filing should be confirmed against the current USCIS fee schedule before submission.
What We Need to Evaluate an H-1B Case
A useful initial review does not require every document that may eventually be filed with USCIS. It does require enough information to determine whether the job, employer and professional fit the H-1B requirements.
Information from the U.S. employer
- Proposed job title and detailed duties
- Minimum education and experience requirements
- Offered wage and expected work schedule
- Primary work location and any additional worksites
- Company business activities and organizational information
- Planned employment start date
- Previous H-1B filings when relevant to the new case
Information from the professional
- Degree certificates and academic transcripts
- Credential evaluation, if already available
- Current résumé or curriculum vitae
- Passport biographic information
- Current U.S. immigration status, if applicable
- Prior Forms I-797 and I-94 records
- Professional licenses where required for the occupation
Additional evidence depends on the case. A startup, cap-exempt organization, third-party work arrangement, foreign degree or prior status issue may require documents that are unnecessary in a straightforward petition.
Common H-1B Petition and RFE Issues
A strong petition should explain the relationship between the position, the required specialized knowledge and the beneficiary’s qualifications before USCIS asks for clarification. More documents do not necessarily make a case stronger if the core evidence is inconsistent.
| Issue | Potential concern | How the record can address it |
|---|---|---|
| Specialty occupation | The duties appear too general to require specialized university-level knowledge. | Explain the actual duties, required knowledge, degree relationship and business context. |
| Degree relationship | The beneficiary’s education does not clearly relate to the offered position. | Analyze coursework, degree equivalency, specialized experience and the connection between education and duties. |
| Available qualifying work | The evidence does not sufficiently establish the proposed specialty-occupation work. | Use employer-specific evidence appropriate to the position, organization and requested employment. |
| LCA consistency | The wage, occupation, worksite or employment details conflict across the filing. | Review the LCA, Form I-129, employer support letter and underlying employment facts together. |
| Maintenance of status | An extension or change-of-status request depends on the beneficiary’s prior immigration history. | Review I-94 records, prior approvals, employment history and other status documentation before filing. |
H-1B Legal Services for Employers and Professionals
Arvian Immigration assists with new H-1B hiring as well as issues that arise during existing H-1B employment. Because the U.S. employer is generally the petitioner, the legal analysis must connect the employer’s actual position and business records with the professional’s qualifications and immigration history.
New H-1B petitions
- Specialty-occupation eligibility review
- Beneficiary qualification and degree analysis
- Cap registration strategy
- U.S. advanced-degree exemption review
- Labor Condition Application preparation
- Form I-129 petition preparation and filing
Cap-exempt H-1B cases
- Higher-education employer analysis
- Related or affiliated nonprofit eligibility
- Nonprofit and governmental research organizations
- Employment supporting a qualifying institution or organization
- Previous H-1B cap-counting analysis
Existing H-1B employees
- Change-of-employer petitions
- Extensions of H-1B status
- Amended petitions
- Concurrent H-1B employment
- Worksite and duty changes
- Extensions connected with employment-based permanent residence
Complex filings and employer compliance
- USCIS Requests for Evidence
- Founder and beneficiary-owner cases
- Foreign degree and equivalency issues
- Prevailing and actual wage questions
- LCA compliance and public access records
- Termination and petition withdrawal issues
H-1B Visa Frequently Asked Questions
Does every new H-1B worker have to go through the annual cap process?
No. Certain employers and employment arrangements may qualify for cap exemption, and some beneficiaries were previously counted against the H-1B cap and can qualify for later petitions without a new cap selection. The analysis depends on both the proposed employment and the beneficiary’s H-1B history.
Can an H-1B professional change employers?
Yes. The new employer generally files its own H-1B petition. In qualifying portability cases, the professional may be authorized to begin employment after USCIS receives the properly filed petition instead of waiting for final approval.
How long can someone remain in H-1B status?
H-1B classification is generally granted in periods of up to three years and is ordinarily subject to a six-year maximum period of admission. Recapture of qualifying time spent outside the United States and certain employment-based permanent residence cases can allow additional H-1B time.
Can an H-1B professional apply for a green card?
Yes. H-1B classification generally permits dual intent. Pursuing permanent residence does not by itself prevent a person from maintaining H-1B status. H-1B extensions and employer changes should nevertheless be coordinated with the person’s PERM, Form I-140 or adjustment-of-status strategy when those processes overlap.
What happens if an H-1B employee loses a job?
USCIS may allow a discretionary grace period of up to 60 consecutive days, or until the end of the current authorized validity period if that date comes first. During that period, the professional may have options such as a qualifying change of employer or change of status. The grace period is not a separate grant of employment authorization, so the person’s I-94 record and next immigration filing should be reviewed promptly.
Can a spouse and children accompany an H-1B professional?
A qualifying spouse and unmarried children under 21 may generally seek H-4 dependent status. Certain H-4 spouses may also qualify to apply for employment authorization when the regulatory requirements are met. Eligibility for H-4 employment authorization should be reviewed separately from eligibility for H-4 status itself.
Discuss Your H-1B Case Before Filing
H-1B problems are easier to address before a petition is submitted. Reviewing the position, wage, work location, degree requirements, cap strategy and immigration history at the beginning of the case can identify issues that would otherwise appear during USCIS adjudication.
Arvian Immigration assists U.S. employers and skilled professionals with new H-1B petitions, cap-exempt employment, changes of employer, extensions, amendments, founder cases, employer compliance and responses to USCIS Requests for Evidence.
Official H-1B resources
- USCIS — H-1B Specialty Occupations: https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations
- USCIS — H-1B Cap Season: https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-cap-season
- U.S. Department of Labor — H-1B Visa Program: https://www.dol.gov/agencies/eta/foreign-labor/programs/h-1b
- U.S. Department of Labor — H-1B Employer Requirements: https://www.dol.gov/agencies/whd/fact-sheets/62-index-h1b
- Electronic Code of Federal Regulations — 8 CFR § 214.2: https://www.ecfr.gov/current/title-8/section-214.2
Testimonials about our services
Employment-Based Immigration: Your Path to U.S. Opportunities
CONTACT US
If you are located in the US, please feel free to contact us with any questions or concerns you may have. We look forward to helping you.
SERVICES
LINKS
CONSULTATION
Arvian Law Firm LLC
Vitalii Maliuk,
ATTORNEY AT LAW (МО № 73573)
Copyright © Arvian Law Firm LLC 2026