For employers
H-1B Specialty Occupation
The default route for hiring foreign professionals, and the one with the most moving parts.
- HIGH VOLATILITY — verify on publication day and re-verify quarterly at minimum
- INA § 101(a)(15)(H)(i)(b); 8 C.F.R. § 214.2(h)
- 20 C.F.R. Part 655 Subparts H and I — LCA obligations
- Cap registration mechanics, selection methodology, and fees for the current cycle
- Cap-exempt employer qualifying criteria
- Current guidance on material change and amended petitions
- Statutory provisions for extension beyond the sixth year
- Current H-4 employment authorization eligibility
- Current specialty occupation regulatory text and Policy Manual treatment
What the category requires
H-1B is available for positions that qualify as specialty occupations — roles requiring the theoretical and practical application of a body of specialized knowledge, and requiring at least a bachelor's degree in a specific specialty as a minimum for entry.
The analysis that decides most contested cases is the nexus between the degree field and the duties. A role open to any four-year degree is the classic failure pattern.
The cap and registration
Most H-1B petitions for new employment are subject to an annual numerical limit, reached through an electronic registration and selection process that runs on a fixed calendar. Registration mechanics, the selection methodology, and the fee structure have all changed in recent cycles.
Cap-exempt employment
Not every H-1B is subject to the lottery. Institutions of higher education, certain affiliated nonprofits, nonprofit research organizations, and government research organizations are exempt. Concurrent employment arrangements can sometimes reach candidates who would otherwise be capped.
The qualifying criteria are specific and easy to state imprecisely. They are worth confirming for your institution rather than assuming.
LCA obligations
An H-1B petition requires a certified Labor Condition Application, and that certification carries continuing obligations: wage requirements, notice requirements, and a public access file you must maintain and produce on request. These obligations outlive the filing and are the most common source of DOL enforcement exposure.
Amendments and changes
Material changes to the terms of employment can require an amended petition before the change takes effect. Worksite changes are the most common trigger and the most commonly missed — including changes that feel administrative, like a move across a metropolitan boundary.
Extensions beyond six years
H-1B status is subject to a maximum period, with statutory provisions permitting extension beyond it where a labor certification or immigrant petition has been pending or approved for long enough. Those provisions are the reason PERM timing and H-1B timing are the same conversation.
Dependent family members
H-4 dependents may be eligible for employment authorization in defined circumstances tied to the principal's green card progress. For candidates weighing offers, this is frequently the deciding term, and it is worth being able to answer accurately during recruiting rather than after acceptance.
Where employers get into trouble
- Starting PERM too late to support an extension beyond the sixth year
- Worksite changes without amendment
- Public access files that were never assembled
- Benching — non-productive status without pay
- Assuming the lottery is the only route
If you've received a Request for Evidence
H-1B RFEs cluster tightly. In most of them the adjudicator is questioning either whether the position is a specialty occupation or whether the employment relationship is what the petition describes.
What these requests typically ask for
- Evidence that the position requires a degree in a specific specialty rather than any bachelor's degree
- The nexus between the beneficiary's degree field and the duties performed
- Evidence of specific, non-speculative work available for the validity period requested
- For third-party placement, documentation of the end-client relationship and who directs the work
- Evaluation of a foreign degree or of experience offered as a degree equivalent
Response periods for RFEs are set on the notice itself and are not routinely extended. Bring the notice to the first conversation — the language of the request usually tells you which of the above is actually at issue.
Read the notice before anything else. The language an adjudicator chooses usually identifies the specific concern, and a response that sends more of the same material rather than addressing that concern is how an answerable request becomes a denial. Response deadlines are printed on the notice, are short, and are not routinely extended.
I take on responses to requests for evidence, audits, and notices of intent to deny in matters I did not file. Bring the notice and the original filing to the first conversation.
Related
H-1B cap alternatives
Your candidate wasn't selected. What's actually available now, without waiting for next March.
Read more →LCA and public access file compliance
Wage and notice obligations, file construction, DOL investigation readiness.
Read more →PERM labor certification
Prevailing wage strategy, recruitment design and documentation, ETA-9089 preparation, audit and supervised recruitment response.
Read more →For universities and research institutions
Cap-exempt hiring, international faculty and postdoctoral recruitment, and permanent residence paths that don't require a labor market test.
Read more →Let's talk about your matter.
Consultations are scheduled directly with me. If you're facing a filing deadline or holding a notice with a response date on it, say so first and I'll prioritize it.
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[email protected] · (508) 591-0775 · Kingston, Massachusetts