What Is an H-1B Visa and Who Qualifies?

The H-1B visa is a non-immigrant, temporary work visa designed for individuals filling roles in specialty occupations — fields that require at least a bachelor’s degree or higher. While tech companies dominate H-1B hiring, the visa also applies to professions like medicine, research, and education.

Recently, confusion arose over a proposed $100,000 entry fee tied to new H-1B petitions. The rule, introduced in late September, caused widespread concern among visa holders and employers. However, according to Kevin Stewart, the proposal is under litigation and has not yet taken effect. Most existing H-1B holders are not impacted.

Who Pays the Fees for H-1B Petitions?

All H-1B-related fees, including potential new ones, are typically the employer’s responsibility. U.S. law prohibits employers from passing these costs to the employee.

If a $100,000 fee were ever enforced, Stewart explains, it could effectively shut down the H-1B program, as few companies would be willing to pay such an amount.

The H-1B Process and Lottery System

Each fiscal year, the U.S. government caps H-1B visas at 85,000, while applications often exceed 400,000. To manage demand, USCIS conducts a random lottery for “cap-subject” employers. Nonprofit organizations, universities, and research institutions are cap-exempt, meaning they can file petitions at any time.

The H-1B process generally follows this timeline:

  • March: Employers register selected candidates.
  • April: USCIS announces lottery results.
  • June: Approved petitions must be submitted.
  • October 1: Employment typically begins with the new fiscal year.

Applicants holding a master’s degree or higher gain an advantage, as they receive a second chance in a separate lottery pool.

Options if You’re Not Selected

Applicants who aren’t chosen in the lottery can try again in the next fiscal year while maintaining their current legal status. Many rely on F-1 OPT (Optional Practical Training) to stay in the U.S. temporarily. Others may pursue cap-exempt employment or explore alternative visa categories such as O-1A (for individuals with extraordinary ability).

Employer Responsibilities and Compliance

Employers sponsoring H-1B workers must follow strict compliance rules. They’re required to:

  • File a Labor Condition Application (LCA) with the Department of Labor, confirming they’ll pay at least the prevailing wage for the position.
  • Post public notices about the job before filing.
  • Maintain a public access file to prove compliance with the LCA and H-1B regulations.

Failure to meet these requirements can lead to audits or penalties.

Common Reasons for Denial or Delays

Most denials occur due to incomplete documentation. Each petition must include detailed evidence of the employee’s education, work history, job relevance, and lawful immigration status. Employers must also prove their business legitimacy and ability to pay the required wage.

Kevin Stewart emphasizes that successful petitions are built on thorough documentation. His firm has maintained a strong record of approvals because of their meticulous preparation process.

Changing Employers While on an H-1B Visa

H-1B holders can switch jobs, provided the new role remains in the same specialty occupation. This requires a new petition from the new employer, but the visa holder doesn’t need to leave the country if their current H-1B status is still valid.

H-1B visas are issued for three years, renewable for another three, with potential one-year extensions for those pursuing green cards through approved I-140 petitions.

Pathway to Permanent Residency

While working under an H-1B, individuals may apply for permanent residency (green card) through their employer’s sponsorship. Some also qualify independently under categories like EB-1A (extraordinary ability) or EB-2 NIW (National Interest Waiver). These options allow professionals to secure long-term status in the U.S. even if they change employers.

What’s Next for the H-1B Program?

The proposed $100,000 entry fee has created significant uncertainty. Stewart advises both employers and visa holders to stay informed, work closely with experienced immigration counsel, and avoid making assumptions until litigation outcomes are clear.

He also notes upcoming proposals that may reshape the lottery system, potentially giving priority to higher-paid positions, aligning selection more closely with salary levels rather than random chance.

Final Thoughts from Kevin Stewart

Kevin Stewart urges employers and employees alike to remain proactive and patient. “Don’t assume anything until it’s finalized,” he says. “Immigration policy is always evolving, and informed decisions make all the difference.”

For the latest immigration updates or guidance on the H-1B process, visit oaklandimmigrationlaw.com.