H1B Employers and Workers
H1B status is highly desired by employers and equally by employees because it allows the employment of highly skilled foreign national workers. Physicians and other health care professionals, engineers, professors, teachers, scientists, lawyers, and many other professionals are eligible to work for U.S. employers upon approval of the petition.
H1B Selection
New Final Rule imposes a weighted selection process to favor h1b candidates with higher skills and higher wages.
This rule will be effective February 27, 2026 and will apply to upcoming h1b cases being filed.
Employer Regitration
H1B filing is initiated by the U.S. employers registering with the USCIS for Cap subject petitions. Registration of employers as h1b initiation process will begin soon and should be announced.
Employers who intend to file h1b petitions to hire foreign nationals for FY (starting October 1st of the year) must first register with the USCIS. A selection process will then be conducted. Whether a lottery will be conducted yet again, in selecting the winning employers remains to be seen. Only the employers whose registration is selected can submit the h1b petitions.
USICS should soon announce the h1b process and registration for U.S. employers for the upcoming Fiscal Year (FY27) h1b cap.
Advantages of Having an H1B Immigration Status
- H1b workers can maintain lawful immigration stay for up to 6 years and more,
- Promotes family unity - spouse and children under 21) can live together
- and
Apply for lawful permanent residence.
Qualification
Bachelor's or higher educational degree is a job requirement. (Years of experience can substitute educational requirements.)
Filing Period
H1b preparation and planning should start early.
Additional $100,000 Fee Requirement & National Interest Waiver
START
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Is the H-1B petition requesting Change of Status (COS) inside the U.S.?
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├── YES
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│ ▼
│ Does USCIS APPROVE Change of Status?
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│ ├── YES → ❌ $100,000 fee does NOT apply
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│ └── NO (COS denied or applicant not eligible)
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│ ▼
│ Case converts to Consular / POE Notification
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│ → ✅ $100,000 fee APPLIES (Scenario #3)
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└── NO (Petition requests Consular or POE Notification)
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Does the beneficiary already have a VALID H-1B visa stamp?
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├── YES → ❌ $100,000 fee does NOT apply
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└── NO
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Must the beneficiary ENTER the U.S. to activate H-1B status?
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├── NO → ❌ Fee does NOT apply
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└── YES → ✅ $100,000 fee APPLIES (Scenario #1)
EXCEPTION: the fee may be waived by the Secretary of State requiring the employer to pay the fee would be contrary to the national interest and if no competent U. S. worker is available for the position and h1b candidate is not a threat to the security and welfare of United States.
Wage-based selection is delayed
New Wage based selection process under the new rule dated 1/8/21 is postponed until December 31, 2021.
The following h1b petitions can be filed anytime and are not cap-subject:
Extension of stay
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Change h1b employment terms
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Change of h1b employer
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Concurrent H1b petition
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Recapture of h1b time spent outside
What is Recapture?
An H-1B visa holder is entitled to a full 6-year status from the initial entry into the status. Any unused time, e.g., 'days' spent outside the U.S. by an H-1b holder, does not count towards the maximum allowable period of stay and may be considered to extend the 6-year-period by the same number of days. This provision applies to L visas also.
Employer's Obligation
H1b employer must pay a higher actual wage or the prevailing wage prevailing in the area for the position, upon the termination of employment, pay return travel expenses, among other obligations. Call for advice.
American Competitiveness in the Twenty-First Century Act (AC-21) porting
H-1B Extensions Beyond the 6-Year Limit (7th-Year Extensions)
In many cases, H-1B status can be extended beyond the standard 6-year limit. Ordinarily, H-1B employment is limited to a maximum of six years, typically granted for an initial maximum of three-year period and extendable for an additional three years.
However, under the American Competitiveness in the Twenty-First Century Act (AC21), certain foreign national workers may qualify for extensions beyond six years if they are pursuing U.S. permanent residence.
When 7th-Year (or beyond) H-1B Extension is Possible?
An extension beyond six years may be available if:
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A PERM labor certification, I-140 immigrant petition, or adjustment of status application was filed at least 365 days before the end of the sixth year, and, The permanent residence process remains pending or meets statutory criteria for extension. Or;
- I-140 is approved for over 6 months and remains valid.
Depending on the case, extensions may be granted in one-year or three-year increments.
Plan Early to Avoid Gaps in Status
Because eligibility depends on timing and the status of the green card process, early planning is critical to maintaining lawful status and uninterrupted employment.
Ideally, you should consult an immigration attorney before the end of your fourth year of H-1B status to evaluate green card strategy and preserve eligibility for future H-1B extensions.
Premium Processing
Faster processing of h1b petitions is possible for an additional filing fee of $1440. It requires the agency to take decisive action on an H1B petition within 15 days of its receipt, and premium processing is optional.
For more information on planning for your immigration status, call to schedule a consultation.
Amendment of h1b
Material changes in the h1b employment initially approved necessitate the employer filing an amended petition. These could include organizational restructuring, significant changes in the job duties, and changes requiring a new labor condition application.
Call for advice if have questions about whether the employer is required to file an h1b amendment petition.
Call If You Need Help And You Are
U.S. EMPLOYER and have found a qualified foreign national you would like to hire for a period of up to three years; or,
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FOREIGN NATIONAL with a job offer from a U.S. employer and would like to:
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Apply for authorized employment; or,
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Know if you qualify for h1b; or,
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Have your employer file an h1b petition for you; AND... IF,
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The position requires a Bachelor's Degree or higher as a minimum educational qualification.
(All requests are first assessed whether H1B eligibility criteria can be met.)
Legal Advice
Questions about initial h1b or extension eligibility with the change of status or Consular Processing need; Cap Exempt h1b Organizations; Prevailing Wage; Employer Obligation under Labor Condition Application or LCA; Eligibility to Pay; h1b Fraud Inspection; Relocation of job or Employer; Business Merger or Acquisition; issues about h1b admission or change of status with impending international travel.
Whether the employer qualifies to file cap-exempt H1B requires an in-depth analysis. Normally, a non-profit or higher educational institution qualifies for this exemption, but many other institutions may also be eligible through affiliation. Physicians, professors, researchers, etc., seeking employment at a university, an affiliated hospital, or other institution can seek cap-exempt H-1B status.
Myth Buster
H1B employer need not be the one who had filed the Labor Certification for the employee.
Experience
H1b cases handled in the following industries: Healthcare, Business Management, Construction, Education, Engineering, Information Technology, Pharmaceutical, Environmental, Automotive, Sports, Manufacturing, Electronics, Heating & Cooling, and Communications.
The Numerical limit
H1b submissions should be well prepared because under the new policy, in case of insufficient evidence of eligibility, USCIS can deny the h1b petition instead of sending a "request for evidence."
Documents required for preparing your H1B petition...
Frequently Asked H1B Questions:
Abused spouse of an H non-immigrant may seek work authorization.