H-1B Specialty Occupation Visas
The H-1B visa is one of the most widely used nonimmigrant work visa categories in the United States. It allows U.S. employers to hire foreign professionals in specialty occupations—positions that require the theoretical and practical application of highly specialized knowledge and at least a bachelor’s degree or its equivalent in a specific field.
The H-1B program has undergone significant changes in recent years. The introduction of a beneficiary-centric registration system, a new weighted lottery based on wage levels, and a substantial additional fee for certain petitions have transformed how employers and immigration attorneys approach the H-1B process.
How the H-1B Process Works
Establishing a Specialty Occupation
The foundation of any H-1B petition is demonstrating that the position qualifies as a specialty occupation. The role must require at least a bachelor’s degree or equivalent in a specific field, and the degree requirement must be common in the industry. Employers should carefully document the specialized nature of the role and ensure the beneficiary’s qualifications align with position requirements.
Electronic Registration and the Annual Cap
The H-1B visa is generally subject to an annual cap of 65,000 visas, with an additional 20,000 available for individuals holding a U.S. master’s degree or higher.
When registrations exceed available visas, USCIS conducts a selection process. Under the beneficiary-centric system, each beneficiary is entered only once, regardless of how many employers register them.
- Electronic registration is required for each beneficiary
- $215 registration fee per submission
- Passport information is mandatory
- Fraud prevention measures are in place
- 90 days to file after selection
The Weighted Selection Process
Beginning with the FY2027 cap season, USCIS has introduced a weighted lottery system based on wage levels.
- Level I wage = 1 entry
- Level II wage = 2 entries
- Higher wages = increased selection probability
If a beneficiary is registered by multiple employers or across multiple worksites, the weighting is based on the lowest applicable wage level to prevent manipulation.
USCIS may deny petitions if wage reductions occur after selection or if registration details are found to be inaccurate.
Cap-Exempt Employers
- Institutions of higher education
- Affiliated nonprofit entities
- Nonprofit research organizations
- Governmental research organizations
Cap-exempt pathways are commonly used for roles such as public school teachers through partnerships with higher education institutions.
The $100,000 Fee for Certain New H-1B Petitions
Effective September 21, 2025, a one-time $100,000 fee applies to certain new H-1B petitions.
This fee applies when:
- The beneficiary is outside the U.S. without a valid H-1B visa stamp
- The petition requests consular or port-of-entry processing
- A change of status is denied and consular processing is required
This fee must be paid via pay.gov before filing and should be considered early in the planning process.
The Cap-Gap for F-1 Students
F-1 students selected in the H-1B lottery benefit from the cap-gap provision, which extends their status and work authorization.
Under current rules, cap-gap extends status and OPT authorization through April 1 of the year following the H-1B start date. This can help avoid additional fees tied to consular processing.
Beyond Six Years
H-1B workers may extend status beyond six years in certain situations:
- 1-year extensions if PERM or I-140 has been pending for 365+ days
- 3-year extensions if I-140 is approved but visa backlog prevents adjustment
The H-1B as a Pathway to Permanent Residence
The H-1B is a dual-intent visa, allowing individuals to pursue permanent residence while maintaining temporary status.
Many H-1B workers transition to green cards through:
- PERM labor certification
- EB-1 extraordinary ability category
- National Interest Waiver (NIW)
Schedule a Consultation
At Massa Viana Law, we represent employers in H-1B matters, from initial petitions through extensions, transfers, and the transition to permanent residence. Our attorneys understand the evolving regulatory landscape and the practical realities of navigating this process. We help our clients interpret these changes and develop effective strategies.
Whether you are an employer preparing to sponsor an H-1B worker or a professional exploring your visa options, we are here to help. The H-1B process requires careful planning, particularly given recent changes to the registration and selection system.
Contact our office in Southborough, Massachusetts, or Providence, Rhode Island to schedule a consultation.
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FAQ
Frequently Asked Questions
What is the H-1B cap, and does it affect every employer?
The H-1B cap limits the number of new H-1B visas issued each fiscal year to 65,000, plus 20,000 for holders of U.S. advanced degrees. However, employers such as universities, nonprofit research organizations, and government research institutions are exempt from the cap and may file H-1B petitions year-round.
How does the new weighted lottery work?
Under the weighted selection process effective for the FY2027 cap season, the lottery gives more entries to beneficiaries offered higher wages. A Level I wage receives one entry, Level II receives two, Level III receives three, and Level IV receives four. The wage level is determined by comparing the offered wage to the prevailing wage data for the relevant
occupation and geographic area. When a beneficiary has multiple registrations or worksites, the lowest applicable wage level is used.
What is the $100,000 H-1B fee?
A Presidential Proclamation effective September 21, 2025, imposed a one-time $100,000 fee on certain new H-1B petitions. The fee generally does not apply to change of status requests approved by USCIS. A very limited National Interest Exception process exists.
Can I change employers while on an H-1B visa?
Yes. An H-1B worker may transfer to a new employer. The new employer must file a new H–1B petition, and the worker may begin employment as soon as the petition is filed, without waiting for approval. The worker does not need to go through the lottery again.
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