How to Get an H1B Visa

To be eligible for an H1B visa, a person must

1. Have a minimum of a 4-year university degree or equivalent;
2. Be paid at the “prevailing wage” or the “actual wage”, whichever is higher;
3. The job must require a minimum 4-year university degree or equivalent.

H1B visas are subject to a numerical cap of 65,000 per fiscal year. In addition, 20,000 persons who obtain advanced degrees from universities in the U.S. have their own H1B cap. Up to 6,800 H1B visas are reserved for persons who are citizens of Chile and Singapore.

Certain H-1Bs petitions are exempt from the numerical caps including employment “at” universities, at “affiliated” or “related” non-profit organizations or at governmental and non-profit research institutions.

You can stay up-to-date with the latest news regarding H1B visas, the waiting times in the Visa Bulletin and other immigration news by subscribing to our Free E-Mail Newsletter.

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USCIS started an online electronic registration process in 2020.  Prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, will complete a registration process that requires only basic information about the prospective petitioner and each requested worker.

The initial registration period for the FY 2022 cap started on March 9, 2021 and closed on March 25, 2021. The H-1B random selection process was run on properly submitted electronic registrations. Only those with selected registrations are eligible to file H1B cap-subject petitions.

Employers started submitting their H1B petitions at the beginning of April. Persons on whose behalf H-1B petitions are approved may start employment on October 1st. However, there are special rules (known as the “cap-gap”) for graduates of universities in the U.S. working on Optional Practical Training (OPT) which enable them to continue working for their employers during the spring and summer and automatically change their status to H-1B on October 1st.

H1B visas are typically valid for 3 years and can easily be extended for an additional 3 years. If a PERM application or an I-140 visa petition has been submitted in a timely fashion, post-6th year extensions of H-1B status are possible. We recommend that you extend your H-1B status until the day that you become a lawful permanent resident of the U.S.

Certain H-4 spouses of H-1B professionals are eligible to apply for work permits (EADs).

We hope that the information listed below will help you to obtain an H1B visa, or, if you are an employer, to understand how to sponsor foreign-born professionals for H-1B status.

The H1B Visa Guide is divided into the following subtopics:

• H-1B FAQ
• H-1B Visas for Employers
• H-1B News
• Success Stories
• American Competitiveness in the 21st Century Act (AC-21)
• Adjustment of Status to Permanent Residence
• American Competitiveness Act (ACWIA) and Regulations
• AAO Non-Precedent Decision Repository

H1B FAQ

1. How do I qualify for an H-1B visa?

You must be sponsored by an employer in the U.S. The job must require a minimum of a Bachelor’s degree in the field and you must have such a degree or its equivalent.

Your employer must agree to pay you either the prevailing wage (as determined by the U.S. Department of Labor) or the actual wage that the employer pays similarly situated professionals, whichever is higher.

2. What is the H-1B lottery?

There is an 85,000 annual limit to the number of H-1B petitions which can be approved by the USCIS.

Therefore, every April, the USCIS conducts a lottery to determine which petitions that it will accept.

3. Are certain employers exempt from the H-1B lottery?

Yes. These include (1) Jobs located on the grounds of an institution of higher education; (2) Non-profit organizations which are “related to” a university; (3) Non-profit organization which are “affiliated with” a university; (4) Non-profit research organizations; and (5) Government research organizations.

4. How long can I remain in the U.S. in H-1B status?

Your employer can sponsor you for H-1B status for up to 3 years, and apply for a 3-year H-1B extension.

If an I-140 visa petition for a green card has been approved on your behalf under the EB-1, EB-2 or EB-3 categories, and your priority date is not yet current, your employer can apply to extend your H-1B status for 3 years at a time beyond the 6-year limit.

The law also permits one-year extensions of H-1B status beyond the 6th year, even without an approved I-140 immigrant visa petition. These are possible if 365 days or more have elapsed since the filing of either a PERM labor certification or an I-140 immigrant visa petition.

H1B VISAS FOR EMPLOYERS

• FY 2023 H-1B Cap Initial Registration Period Opens on March 1, 2022 (USCIS) – 1-28-22
• H-1B Employer Date Hub (USCIS)
• Labor Condition Application (DOL)
• What are an H-1B employer’s notification requirements? (DOL)

H1B Visa Success Stories

• Getting an H-1B Approved for a Remote Worker
• Avoiding the H-1B Cap with a Little Help from the USCIS

More success stories…

American Competitiveness in the 21st Century Act (AC-21)

• How USCIS Determines Same or Similar Occupational Classifications for Job Portability Under AC21
• Supplemental Guidance Relating to AC-21 (5-30-08)
• Interim Guidance for Processing Form I-140 EB Immigrant Petitions And Form I-485 and H-1B Petitions under AC-21 (5-12-05)
• INS Adopts “Alien-Based” Approach to Portability (4-24-02)
• Initial Guidance for Processing H-1B Petitions as Affected by AC-21 (INS) (6-19-01)
• Traveling During H-1B Portability Period (State Department) (2-14-01)
• AC-21: INS FAQ
• New H-1B Law FAQ (AILA)
• Section-by-Section Analysis of the H-1B Cap Bill As Passed By Congress (10-3-00)
• Summary of H-1B Cap Bill As Passed By Congress (10-3-00)
• Text of the Bill To Raise the H-1B Fee to $1,000 (10-12-00)

ADJUSTMENT OF STATUS For H & L Visaholders

• Understanding H-1B Requirements
• INS Field Memo on Adjustment of Status for H and L Visaholders (May 2000)
• H and L Regulations on Adjustment of Status (6-1-99)

AMERICAN COMPETITIVENESS ACT (ACWIA)

• ACWIA (1998) – Complete Text of Law
• ACWIA – Section-by-Section Summary of Law
• ACWIA – Highlights of the Law
• ITAA Calls on Congress to Raise Cap for Temporary Workers
• H-1B Regulations: AILA Summary of Provisions of General Applicability
• H-1B Regulations: AILA Summary Of Provisions Relating To “H-1B Dependent” Employees
• DOL Letter Re: “Single Employer” Rule (2-21-01)
• Letter From Senators Abraham and Graham In Response To DOL’s Interim H-1B Regulations (1-1-01)

AAO Non-Precedent Decision Repository

• Decisions on H-1B Petitions (2005 – Present)

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