This nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.
Eligibility Criteria
| Classification | General Requirements (among others) | Labor Condition Application Required? |
|---|---|---|
| H-1B Specialty Occupations | The occupation requires:
The position must also meet one of the following criteria to qualify as a specialty occupation:
For you to qualify to perform services in a specialty occupation you must meet one of the following criteria:
Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’sor higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.** | Yes. The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129, Petition for a Nonimmigrant Worker. See theDOL’s Office of Foreign Labor Certification. For more information see the Information for Employers andEmployees page. |
H-1B2 DOD Researcher and Development Project Worker | The job must require a bachelor’s or higher degree, or its equivalent, to perform the duties. The petition must be accompanied by:
To be eligible for this classification you must have a bachelor's or higher degree or its equivalent in the occupational field in which you will be performing services. This requirement can be met based on one of the following criteria:
| No. |
H-1B3 Fashion Model | The position/services must require a fashion model of prominence. To be eligible for this visa category you must be a fashion model of distinguished merit and ability. | Yes. The prospective petitioner must include a Form ETA-9035/9035E, Labor Condition Application (LCA) certified by the Department of Labor (DOL), with the Form I-129. See the links to the Department of Labor’s Office of Foreign Labor Certification. |
*For more information, see 8 CFR §214.2(h)(4)(iii)(A).“Normally,” “common,” and “usually” are interpreted based on their plain language, dictionary definitions. They are not interpreted to mean “always.”
**For more information see 8 CFR §214.2(h)(4)(iii)(C).
H-1B Licensing
Some professions require an H-1B beneficiary to hold a state or local license authorizing the beneficiary to fully practice the specialty occupation.
If an occupation in the state of intended employment requires such a license, an H-1B beneficiary seeking classification in that occupation generally must have that license before the petition is approved, rather than at the time of filing the petition. See 8 CFR 214.2(h)(4)(v)(A)–(B). When a license is required, but there is no evidence of the beneficiary holding one, USCIS will generally issue a request for evidence of the required license.
H-1B Electronic Registration Process
In 2020, weimplemented anelectronic registration process for theH-1B cap. A cap-subject H-1B petition will not be considered to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year, unless the registration requirement is suspended. For more information about the H-1B registration process, visit our H-1B Electronic Registration Process webpage.
Petition Filing Process
Step 1: (only required for specialty occupation and fashion model petitions): Employer/Agent Submits LCA to DOL for Certification.
The employer/agent must apply for and receive DOL certification of an LCA. For further information regarding LCA requirements and DOL's process, see the Foreign Labor Certification, Department of Labor page.
Step 2: Employer/Agent Submits Completed Form I-129 to USCIS.
The employer/agent should file Form I-129, Petition for a Nonimmigrant Worker, at the correct location or online. Please see our I-129 Direct Filing Chart page. The DOL-certified LCA should be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 (PDF, 549.11 KB)for additional filing requirements.
Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.
Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.
Labor Condition Application (LCA)
Prospective specialty occupation and distinguished fashion model employers/agents must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer/agent. The application requires the employer/agent to attest that it will comply with the following labor requirements:
- The employer/agent will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.
- The employer/agent will provide working conditions that will not adversely affect other similarly employed workers.
- At the time of the labor condition application there is no strike or lockout at the place of employment.
- Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment.
Period of Stay
As an H-1B specialty occupation worker, you may be admitted for a period of up to 3 years. Your time period may be extended, but generally cannot go beyond a total of 6 years.
However, you may be eligible for an H-1B extension beyond the sixth year under 8 CFR 214.2(h)(13)(iii)(E) if you are the beneficiary of an approved immigrant visa petition under the EB-1, EB-2, or EB-3 classifications, and are eligible to be granted that immigrant status but for application of the per country or worldwide limitations on immigrant visas. Petitioners must demonstrate the visa is not available as of the date they file an H-1B petition with USCIS. We may grantextensions on this basis in up to 3-year increments until we make a final decision to revoke the approval of the immigrant visa petition or to approve or deny your application for an immigrant visa or application to adjust status to lawful permanent residence.
Alternatively, under 8 CFR 214.2(h)(13)(iii)(D), you may be eligible for an H-1B extension beyond the sixth year if at least 365 days have passed since a labor certification was filed with the Department of Labor on your behalf (if such certification is required) or an immigrant visa petition was filed with USCIS on your behalf.
You are ineligible for this extension beyond the sixth year if you fail to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa being available. If the accrual of such 1-year period is interrupted by the unavailability of an immigrant visa, you will have a new 1-year period after an immigrant visa again becomes immediately available, during which you generally must file an adjustment of status application or apply for an immigrant visa. We may, in our discretion, excuse a failure to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa being available if your employer establishes that the failure to apply was due to circ*mstances beyond your control. When considering whether to excuse a failure to timely file within 1 year, we will look at the totality of the circ*mstances, which may include:
- whether there was a change of employment;
- whether the change of employment was voluntary;
- when and why the employment with the original employer ended; and
- what steps you and your new employer took after the change of employment to file an adjustment of status application or apply for an immigrant visa.
We may excuse a failure to timely file in cases of both voluntary and involuntary change of employment when considering the totality of the circ*mstances. We may grantextensions under this provision in up to 1-year increments until the approved permanent labor certification expires or a final decision has been made to:
- deny the application for permanent labor certification,
- deny the immigrant visa petition, or, if approved, revoke the approval;
- deny or approve your application for an immigrant visa or application to adjust status to lawful permanent residence; or
- administratively or otherwise close the application for permanent labor certification, immigrant visa petition, or application to adjust status.
Your employer will be liable for the reasonable costs of your return transportation if they terminate your employment before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign from your position. For more information, please see Options for Nonimmigrant Workers Following Termination of Employment.
H-1B Cap
The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year. An additional 20,000 petitions filed on behalf of beneficiaries with a master’s degree or higher from a U.S. institution of higher education are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to this numerical cap.
For further information about the numerical cap, see ourH-1B Cap Season page.
Changing Employers or Employment Terms with the Same Employer (Portability)
Changing Employers
When can I begin working for a new H-1B employer if I change employers?
- If you are changing H-1B employers, you may begin working for the new employer as soon as they properly file a non-frivolous Form I-129 petition on your behalf, or as of the requested start date on that petition, whichever is later.
- To be eligible for portability, you must not have been employed without authorization from the time of your last admission into the United States, and your new employer must properly file a new, non-frivolous petition before your H-1B period of authorized stay expires.
Will I still have employment authorization if I change employers?
- If you are eligible for H-1B portability, your employment is authorized until USCIS has made a decision on the Form I-129.
- If the new I-129 petition is approved, you may continue working for the new employer for the period of time indicated on the new petition approval.
- If the new petition is denied, you may continue working for your previous employer if your prior period of authorized employment is still valid, but your authorization to work based on portability ceases upon denial of the petition.
- If you are laid off, fired, quit, or otherwise cease employment with your previous employer, you may have up to 60 consecutive days or until the end of your authorized validity period, whichever is shorter, to find new employment, change status, or depart the country.
Can I move from cap-exempt to cap-subject employment?
- If you are moving from cap-exempt to cap-subject employment, your new employer’s H‑1B petition will be subject to the H-1B cap. If subject to the cap, your new employer must first submit an electronic registration when registration period opens. This is typically in March.
- If more unique beneficiaries are registered than projected as needed to meet the cap for a given fiscal year, unique beneficiaries of properly submitted registrations will be randomly selected. All registrants of selected beneficiaries will be notified of selection and selection notices will be uploaded to their account informing them that they may file a petition for the beneficiary named in the selection notice during the applicable filing period. H-1B cap petitions must have a start date of Oct. 1 (or later) of the applicable fiscal year and may not be filed more than 6 months before the requested start date on the petition.
- If you are currently employed in a cap-exemptposition, you may engage in concurrent employment in a cap-subjectposition as long as you will continue to be employed in the cap-exemptposition.You may begin working concurrently for the cap-subject employer as soon as they properly file a non-frivolous Form I-129 petition on your behalf, or as of the requested start date on that petition, whichever is later. As long as you continueyour cap-exempt employment, were previously counted toward the cap, or otherwise remain cap exempt, you will not become subject to the H-1Bcap again during the same H-1B validity period.
Changing Employment Terms with the Same Employer
What if I want to start new employment or change employment terms with my current employer?
- Form I-129 is also used to request new employment or a change of employment with the same employer.
- If your current H-1B employer properly files a non-frivolous Form I-129 requesting new employment or a change of employment on your behalf, you are authorized to work according to the terms of the new or changed employment once that petition is filed, or as of the requested start date on that petition, whichever is later.
Family of H-1B Visa Holders
Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status. Please visit our Employment Authorization for Certain H-4 Dependent Spouses page to learn more.
More Information
- H-1B Cap Season
- Employment Authorization for Certain H-4 Dependent Spouses
- Fee Increase for Certain H-1B and L-1 Petitions (Public Law 114-113)
- Combating Fraud and Abuse in the H-1B Visa Program
- H-1B Electronic Registration Process
- Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)
- Frequently Asked Questions about Part 6 of Form I-129, Petition for a Nonimmigrant Worker
- USCIS Actions to Support Adjustment of Status Applicants Who are in H-1B Status in the United States
