The H-1B category is a temporary work authorized category which authorizes the employment of professionals who will work in a “Specialty Occupation” position. H-1B eligibility requires:
- On offer of employment by a U.S. employer in a “specialty occupation”. The USCIS defines “specialty occupation” as a position which requires the theoretical and practical application of specialized knowledge, requiring at a minimum a bachelor’s degree in a specialty for entry into the profession,
and
- The foreign national must hold the required degree or the equivalent.
H-1B Cap
Under the INA, a limited number of new H-1Bs are available each fiscal year. If the named foreign national on an H-1B petition has never held H-1B status (or held H-1B status for six years) then the petition will be subject to the H-1B cap.
A total of 85,000 cap-subject H-1Bs are available per government fiscal year. Cap related H-1Bs are allocated as follows:
- 57,000 Available to All Qualifying Beneficiaries
- 20,000 Available to Graduates holding U.S. Master’s degree or higher
- 8,000 Available to Nationals of Singapore and Chile
The cap limitation does not apply to petitions for foreign nationals who are currently maintaining H-1B status. An employer may petition to extend or amend an H-1B workers status without cap considerations. In addition, a new employer may petition to transfer an H-1B worker to its organization without cap considerations.
H-1B Cap-Exempt Employers
Certain employers are not subject to the H-1B Cap and may file H-1B petitions throughout the fiscal year. Cap exempt employers include:
- Institution of higher education as defined in the Higher Education Act of 1965
- Nonprofit organization or entity related to or affiliated with an institution of higher education
- Nonprofit research organization or a governmental research organization
H-1B Lottery
Historically the demand for a cap-subject H-1B has exceeded availability. To determine who is eligible for a cap- subject H-1B, the USCIS conducts an annual random lottery. Employers must register prospective H-1B employees for the annual lottery, which generally occurs during the first week of March. Selected petitions can be filed as early as April 01 of each year with a start date of October 01 (the earliest start date available for cap-H-1B petitions). Stay tuned to our News page for the latest information on the H-1B Registration dates.

Period of Admission
H-1B status may be issued for an initial term of up to 3 years. Extensions of status are available for a maximum 6 year period of stay. Considerations on admission:
- An H-1B worker can recapture time spent outside of the U.S. to extend their H-1B status beyond six calendar years. Keep a concise list of your admission and departure dates and proof of the same (admission/departure stamps, airline tickets, etc.)
- H-1B status may be extended beyond the six-year statutory limit under limited circumstances, including if the first petition in the permanent residency/green card process is filed before the foreign national’s fifth year anniversary in H-1B status.
- It is important for the employer and H-1B worker to be mindful of the six-year limitation and plan accordingly.
Commencement of Employment
A foreign national subject to the H-1B cap may commence employment with the H-1B employer on October 01 (assuming approval of the petition).
Under the portability provision of the INA, certain H-1B holders may start employment with a new petitioning H-1B employer upon confirmation that the petition has been filed with the USCIS.
Maintenance of Status
- H-1B approval is employer, position and location specific.
- You cannot use an H-1B approval to work for an employer other than the employer named as the Petitioner on the Form I-797 Approval Notice.
- You cannot use the H-1B approval to work in a position that is different from the position listed on, and described in, the H-1B petition.
- You cannot use the approval to work in a worksite location other than the location listed on the H-1B Petition.
Failure to maintain status can derail future nonimmigrant petitions, as well as the green card process. As part of its representation, US Visa Pro advises both the employer and the employee on the importance of compliance and maintenance of status requirements.
Free Case Evaluation
If you would like to speak with someone directly
Call Us Toll Free
800.567.1234