H-1B Visa – Specialty Occupation

H-1B IT / Computer professionals, Engineers, Financial analysts, Management consultants, Market research analysts, Accountants, Architects, Doctors (Physicians, Surgeons), Dentists, Nurses, Healthcare workers, Psychologists, Scientists, Professors, Teachers, etc.

H-4 Spouse or child of H-1B, H-1B1, H-2, H-3


The H-1B category is for aliens coming to the US to perform services in a “specialty occupation.” To qualify for this category the position should require theoretical and practical application of highly specialized knowledge acquired only at the completion of a baccalaureate degree or its equivalent in the field.

Some examples of “specialty occupations” include:

  • Professionals with specialized knowledge such as information technology specialists, engineers, doctors, accountants, scientists, research analysts, teachers, some healthcare professionals, etc.
  • Foreign nationals coming to the US to offer exceptional services relating to cooperative research and development projects administered by the US Department of Defense.
  • Professional Nurses entering the US as head nurses or specialty nurses; and
  • Distinguished fashion models.

The cap for H-1B visas is 65,000 (regular CAP) and an additional 20,000 for U.S. master degree or higher holders (Masters or advanced degree CAP). The foreign worker is limited to employment with the approved employer/petitioner. Change of employer requires a new H-1B petition. The employment in support of a H-1B petition may be full-time or part-time. In some instances, concurrent with two different employers is possible.

Usually, H-1B status is granted in three-year increments with a maximum duration of six years. An individual is allowed to change employers any number of times within the 6-year period. At the end of six years no further extensions are granted. The individual must leave the US for at least a year before being eligible to apply again. However, after the 6-year period is over extensions in 1-year or 3-year increments can be gotten in certain circumstances. If the employer terminates the employment of the foreign worker prior to the expiration of the H-1B visa, the employer is responsible for providing return transportation to the worker to his/her last place of foreign residence.

The following is the procedure to obtain a H-1B visa for an alien:

  • An appropriate offer of temporary employment to the alien.
  • For H-1B transfers the steps below will apply. For H-1B CAP subject petitions, filing for H-1B registration (if there is a lottery and if picked up in it, then the steps below follow).
  • The employer obtaining an approved Labor Condition Application (LCA) from the Department of Labor (DOL). See below for a detailed explanation of the purpose of the LCA.
  • The employer is filing a petition for a nonimmigrant worker with the necessary supporting documentation.
  • The employer may request the USCIS to change the person’s status if the person is already in the US or if the person is outside the US the employer should identify a Consulate where the beneficiary would appear for a visa.

The LCA serves the following purposes:

  • It ensures that prevailing wages are being paid to the foreign worker thereby protecting the US worker by not allowing to import cheap labor; and
  • That the foreign workers are not exploited.

The LCA is specific to the employer and not to any one individual. The LCA certifies the employer to hire a H-1B nonimmigrant worker in a specific occupation and in a specific geographic location. The maximum period a LCA is approved is for three years. The employer in filing the LCA also makes several attestations about the conditions under which the foreign worker will be employed. These attestations are as follows:

  • That the employer will pay the required wage, which is at least the local prevailing wage or the employer’s actual wage for same positions whichever is higher.
  • That the employer will provide working conditions for nonimmigrants which will not adversely affect the working of workers similarly employed.
  • That there is no strike or lockout in the occupational classification at the place of employment.
  • That the employer provided notice to union or to workers at the place of employment and provided a copy of the LCA to the H-1B worker.

The employer must establish a public access file that may be viewed by any person within one business day of filing the LCA. This file must include the following:

  • A copy of the LCA.
  • The prevailing wage, including its source.
  • An explanation of the actual wage determination.
  • Evidence that the LCA has been filed; and
  • A statement of the actual wage received by the H-1B worker.

The employer must post the LCA for 10 business days in two conspicuous locations in the place of employment. The employer must also keep the following information on the premises (though not required to be made available to the public):

  • Evidence that the H-1B worker has been given a copy of the LCA.
  • Payroll data for all employees in the same position as the H-1B worker.
  • Data that led to the prevailing wage determination.
  • Calculation of the actual wage paid to the H-1B worker; and
  • Documentation of any fringe benefits provided to all employees in the same position.

In some parts of the H-1B petition the employer must also attest if it is H-1B dependent employer. An employer is H-1B dependent if:

  • It has 25 or less employees out of which 7 or more are H-1B workers; or
  • It has 26-50 employees out of which 12 or more are H-1B workers; or
  • It has 50 or more employees and at least 15% are H-1B workers.

If an employer is H-1B dependent and/or a willful violator it must also attest to the following:

  • Non-displacement of the US workers in the employer’s workforce.
  • Non-displacement of the US workers in another employer’s workforce; and
  • Recruitment of US workers and hiring of US worker applicant(s) who are equally or better qualified than the H-1B nonimmigrant(s).

H-1B Cap Registration and Lottery

The H-1B cap registration and lottery process in the United States is as follows:

  1. Registration Period: Employers seeking to sponsor foreign workers for H-1B visas typically need to register their intended candidates during a designated registration period. This period is usually opened a few months before the start of the fiscal year for which the H-1B visas will be available.
  2. Submission of Registrations: During the registration period, employers submit electronic registrations for the foreign workers they intend to sponsor. Each registration includes basic information about the employer and the intended H-1B worker.
  3. Lottery Process: If the number of registrations received by USCIS exceeds the available H-1B visa cap (both the regular cap and the advanced-degree cap), a random lottery is conducted to select the registrations that will proceed to the next step of the process.
  • First, USCIS conducts lottery for the advanced-degree cap (20,000 slots for individuals with U.S. master’s degrees or higher). Unselected advanced-degree registrations then enter the regular cap lottery.
  • Subsequently, USCIS conducts lottery for the regular cap (65,000 slots). The unselected advanced-degree registrations are added to this pool, and a random selection process takes place.
  1. Selection Notices: Employers whose registrations are selected in the lottery receive selection notices. These notices allow the employer to proceed with filing the complete H-1B petition for the selected worker. Employers whose registrations are not selected do not proceed further in that fiscal year’s H-1B process.
  2. H-1B Petition Filing: Once a registration is selected in the lottery, the employer has a limited period (generally 90 days) to prepare and file the full H-1B petition for the selected worker. This petition includes more comprehensive information about the employer, the position, and the foreign worker’s qualifications.
  3. Processing of Petitions: USCIS reviews the H-1B petitions that are filed, and if the petitions meet the eligibility criteria and all necessary documentation is provided, they approve the petitions. Approved petitions grant the foreign worker the authorization to work in the U.S. in the H-1B status.

H-1B Cap Exempt Employers

Cap-exempt employers refer to certain organizations and institutions that are exempt from the numerical limitations (caps) placed on the H-1B visa program.

The standard H-1B visa program has an annual cap on the number of visas that can be issued. As stated above, this cap was set at 65,000 visas, with an additional 20,000 visas available for individuals who have earned a master’s degree or higher from a U.S. institution. Once these caps are reached, USCIS stops accepting new H-1B petitions for that fiscal year, unless the petitioning employer is cap-exempt.

Cap-exempt employers typically include:

  • Universities and Educational Institutions: Non-profit institutions of higher education are generally cap-exempt. This includes universities, colleges, and research institutions.
  • Non-profit Research Organizations: Non-profit research organizations or government research organizations that are affiliated with an institution of higher education are often considered cap-exempt.
  • Government Research Organizations: Certain government research organizations and entities engaged in research that is related to a government interest can be cap-exempt.
  • Hospitals and Healthcare Organizations: Non-profit hospitals and healthcare organizations affiliated with institutions of higher education may also be cap-exempt.
  • Certain Non-Profit Entities: Some non-profit organizations that are associated with or are doing work for institutions of higher education can be considered cap-exempt.

These cap-exempt employers are not bound by the numerical limitations placed on the H-1B program, and as a result, they can petition for H-1B visas for eligible employees without having to go through the H-1B lottery or worry about the availability of visas within the annual cap.

H-1B Cap Exempt Individuals

Individuals who have been counted against the H-1B cap in the past are generally not subject to the cap again if they are seeking to extend their current H-1B status, change employers, or make certain changes to their existing H-1B petitions. This provision is commonly referred to as “H-1B cap exemption based on previous H-1B count.”


  1. H-1B Cap Exemption for Petitions Counted Against the Cap: If an individual has been counted against the H-1B cap in a previous fiscal year and was granted an H-1B visa, they are generally not subject to the annual cap when they seek to do the following:
  • Extend their current H-1B status with the same employer.
  • Transfer their H-1B employment to a new employer.
  • Amend their existing H-1B petition for certain changes in employment terms.
  1. New Employment or Change of Employer: If an H-1B holder changes employers or is seeking new H-1B employment with a different employer after being counted against the cap previously, they can typically start their new H-1B employment without waiting for the cap to open again. This is because they are considered cap-exempt based on their prior H-1B count.

It is important to note that certain conditions and eligibility criteria apply to these situations.

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