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H-1B Visas
Understanding the H-1B Visas
The H-1B visa allows U.S. employers to hire foreign professionals in specialty occupations that require at least a bachelor’s degree or equivalent. It is one of the most widely used work visas and is common in fields such as technology, engineering, healthcare, finance, marketing, architecture, and biotech.
An H-1B petition is typically approved for up to three years, with the option to extend for an additional three years. In many cases, if an employer starts the green card process early enough, H-1B status can be extended beyond the six-year limit. For many professionals, the H-1B is a critical step toward long-term employment and permanent residency in the United States.
The "H-1B Lottery"
Each year, Congress limits the number of new H-1B visas available – this is known as the “H-1B cap” but is often called the “H-1B lottery.” Currently, about 85,000 H-1B visas are allowed in the annual lottery. Approximately 65,000 H-1B visas are available per fiscal year (October 1–September 30) for professionals with at least a bachelor’s degree or equivalent. An additional 20,000 visas are set aside for first-time applicants who hold a U.S. master’s degree or higher.
Historically, USCIS receives far more registrations than available visas. Because of this, only a limited number of employers are allowed to move forward with filing H-1B petitions.
The Annual H-1B Registration Process for the "H-1B Lottery"
Employers must first submit an online registration during USCIS’s registration period, which usually happens each March. USCIS then reviews all registrations and selects those that may move forward. USCIS usually selects all registrations by late March of each year. If selected, the employer has 90 days to submit the full H-1B petition, usually until late June of each year. If the petition is approved, the first potential start date is October 1.
New Weighted Selection System
Beginning February 27, 2026, USCIS replaced the purely random lottery with a wage-based weighted selection system.
Registrations are now entered into the selection pool based on the offered wage level:
In simple terms: The higher the wage offered, the better the odds, though selection is not guaranteed.
Cap- Exempt H-1B petitions
Most H-1B petitions are subject to the annual H-1B lottery, which makes the process unpredictable and often delays employment for months—or prevents it altogether. However, certain employers qualify as “cap-exempt,” meaning they can sponsor an employee for an H-1B at any time of the year without going through the lottery. This can be a major advantage for both employers and employees, especially in time-sensitive situations.
An H-1B petition may be cap-exempt in the following common scenarios:
- The employer is an institution of higher education (a nonprofit college or university).
- The employer is a nonprofit or government organization that conducts research as a fundamental part of its mission.
- The employer is a healthcare organization hiring a physician who has received a J-1 waiver to work in a medically underserved area.
- The employer is otherwise cap-subject, but the employee will spend at least 50% of their work time performing job duties for a cap-exempt organization, and the work directly supports the cap-exempt organization’s core mission or functions.
- The employee holds an H-1B with a cap-exempt employer and seeks a concurrent H-1B with a cap-subject employer, as long as the cap-exempt employment continues.
- The employer is a nonprofit organization that is formally affiliated with a cap-exempt institution—such as a college, university, or research organization—through a written affiliation agreement and an active working relationship.
Because cap-exempt eligibility is highly technical and fact-specific, each petition must independently demonstrate that the employer and position meet the legal requirements at the time of filing. A careful legal analysis is essential to ensure the petition qualifies as cap-exempt and to avoid delays or denials.
H-1B Visa Requirements
Once an H-1B is selected in the annual lottery or an employer determines they are cap-exempt, then an employer can move forward with the actual filing of the H-1B petition. Before filing the petition, an employer must file a Labor Condition Application (LCA) with the Department of Labor, confirming that the foreign worker will be paid the required wage based on the job and location, among other requirements.
After the LCA is certified, the employer files an H-1B petition with USCIS showing that:
- The position qualifies as a specialty occupation, and
- The employee has the required education and experience. H-1B professionals must hold at least a U.S. bachelor’s degree (or equivalent) in a field directly related to the job.
The $100,000 Fee Requirement
Effective September 21, 2025, a presidential proclamation paused adjudication of some H-1B cases and restricted entry for affected workers unless an additional $100,000 government fee is paid. These measures are scheduled to last 12 months, with the possibility of extension.
Who Must pay the $100,000 Fee?
The proclamation generally applies to H-1B petitions filed on or after September 21, 2025 if:
- The worker was outside the U.S. at the time of filing and does not have a valid H-1B visa stamp,
- The petition requests consular notification, port-of-entry notification, or pre-flight inspection, or
- The petition requests a change of status, amendment, or extension, but USCIS later determines the individual is not eligible for that benefit.
Who is Not Affected?
The proclamation does not apply to:
- H-1B petitions filed before September 21, 2025;
- Individuals with a currently valid H-1B visa stamp;
- Certain Canadian H-1B workers returning with petitions filed before the effective date; OR
- Post-September 21, 2025 petitions where USCIS approves a change of status, amendment, or extension.
- In “extraordinarily rare” situations, USCIS may grant an exception where the worker’s H-1B employment is deemed to be in the national interest, no U.S. worker is available, and requiring the fee would significantly undermine U.S. interests.
Why Early Planning Matters
With high demand and new selection rules, strategy matters more than ever. Planning early allows employers to:
- Evaluate wage levels and job classifications
- Maximize selection chances under the new system
- Avoid last-minute surprises during the registration period
Our office helps employers and professionals navigate the H-1B process with clear guidance, thoughtful planning, and a focus on long-term immigration goals.
Spouses and Children of H-1B Visa Holders
Spouses and unmarried children under 21 of H-1B visa holders may be eligible for H-4 visas. The H-4 visa allows family members to live in the US with the H-1B worker, but it generally does not include work authorization.
While H-4 children are not permitted to work, some H-4 spouses may qualify for employment authorization under limited circumstances.
When Can An H-4 Spouse Get a Work?
An H-4 spouse may be eligible to apply for a work permit (Employment Authorization Document, or EAD) if the H-1B principal:
In practice, H-4 work authorization is most common when the H-1B worker is well into the green card process and facing long immigrant visa backlogs.
Most H-4 spouses are not eligible to work, but for those who are, an H-4 EAD can provide valuable flexibility and independence while waiting for permanent residence. Our office regularly helps families evaluate eligibility, file H-4 and EAD applications, and plan for long-term immigration options.
Connecting Your Business With International Talent
At Law Office of Camiel Becker, employment-based immigration is one of our primary practice areas. Our experienced attorneys have worked with a range of talented individuals, employers and human resources professionals to obtain H-1B, and other temporary work visas for their employees. Past clients include California universities, Silicon Valley tech companies, and a range of additional startups and businesses.
Our H-1B visa lawyers offer comprehensive representation to help ensure legal compliance and help increase chances of success in the visa application process. Contact our San Francisco Bay Area law firm to learn more about your options.
The ‘H-1B Lottery’
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