The H-1B visa is the most common path for foreign professionals to work legally in the United States. It applies to jobs that require a specific degree. It is also one of the most competitive visa categories. Every year, far more petitions enter the system than the law allows through, and a random lottery decides who moves forward.
At Pollack, Pollack, Isaac & DeCicco, LLP, our NYC Visado H-1B lawyers have guided professionals and employers through this process for more than 60 years. You work directly with a partner who understands your specific situation, not a rotating case manager.
Llame a (212) 233-8100 to schedule a consultation with our immigration team.
What Is an H-1B Visa and Who Qualifies?
An H-1B visa is a temporary work visa that allows a U.S. employer to hire a foreign professional for a position the law classifies as a “specialty occupation.” That category exists under Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, known as the INA.
What Counts as a Specialty Occupation
A specialty occupation generally requires, at minimum, a bachelor’s degree in a specific field directly related to the job. Engineering, technology, finance, and certain healthcare and education roles are common examples. The applicant’s degree must correspond clearly to the duties of the position the employer is offering. This is a different legal standard from visas based on extraordinary ability or international recognition, which fall under separate categories entirely.
Who Files the Petition
Unlike many other immigration categories, the H-1B petition is filed by the employer, not the worker. The employer must demonstrate that the position genuinely qualifies as a specialty occupation and that the candidate holds the credentials necessary to perform it.
How the H-1B Cap and Lottery System Works
The federal government limits new H-1B visas to 65,000 per fiscal year. It reserves an additional 20,000 for applicants holding a master’s degree or higher from a U.S. institution. Demand exceeds that cap almost every year, which means USCIS selects registrants through a random electronic lottery before any full petition can be filed.
The Electronic Registration Period
Electronic registration typically opens for a window of about two weeks in March, ahead of the fiscal year that begins in October. Only employers whose registrants are selected in the lottery may proceed to file the complete petition.
Employers Exempt From the Annual Cap
Certain employers are not subject to the annual numerical limit at all. This includes universities and institutions of higher education, nonprofit research organizations affiliated with universities, and certain government research entities. If your employer qualifies as cap-exempt, your case can move forward without entering the lottery, which removes a significant amount of uncertainty from the timeline.
Llame a (212) 233-8100 so we can evaluate whether your employer qualifies for a cap exemption.
The Labor Condition Application and Why It Matters
Before filing the H-1B petition with USCIS, the employer must first file a Labor Condition Application, known as an LCA, with the U.S. Department of Labor.
The LCA is a formal attestation. In it, the employer certifies several things: that it will pay the correct prevailing wage for that position and area, that the employment will not adversely affect other workers in similar roles, and that required internal notice has been posted. The Department of Labor’s Office of Foreign Labor Certification reviews and certifies this application before the case can move forward.
Errors in the LCA are one of the most common sources of delay and scrutiny later in the process. This includes an incorrect wage level or a job description that does not match the specialty occupation claimed in the petition.
How Long You Can Stay in the U.S. on an H-1B Visa
An H-1B visa is initially granted for up to three years. It can be extended once for up to three additional years, for a standard maximum of six years.
Important exceptions exist to that six-year limit. If the employer has initiated the green card process, through a Labor Certification known as PERM or an I-140 petition filed at least one year before the six-year mark, the law known as AC21 permits additional extensions beyond that limit. Those extensions continue for as long as the green card process remains pending.
Planning that transition early is one of the most important decisions an H-1B professional can make. It is also an area where experienced legal guidance genuinely changes the outcome.
Can an H-1B Holder Pursue a Green Card?
Yes. The H-1B is one of the few temporary visa categories that permits what is known as “dual intent.” This means a worker can hold H-1B status while their employer simultaneously begins the green card process on their behalf. This sets H-1B apart from many other temporary work visas, where pursuing permanent residency can create complications with current status.
Can Your Spouse or Children Join You on an H-1B Visa?
Yes. The spouse and unmarried children under 21 of an H-1B holder can obtain an H-4 visa. This allows them to lawfully reside in the United States for as long as the principal visa remains valid.
Can an H-4 Spouse Work?
In certain cases, yes. An H-4 spouse can apply for an Employment Authorization Document, known as an EAD. This applies if the principal H-1B holder has an approved I-140 petition, or qualifies under certain extensions tied to the green card process. Not every H-4 holder automatically qualifies; eligibility depends on the specific stage of the principal spouse’s immigration process.
What Happens If You Lose Your Job on an H-1B Visa?
If your employment ends, whether through layoff or resignation, you generally have a grace period of up to 60 days. That window closes sooner if your visa validity expires first.
During that window, you have three options: find a new employer willing to sponsor a new H-1B petition, change to another visa category if you qualify, or depart the United States before the grace period ends. Acting quickly during those 60 days matters significantly, since available options narrow as time passes.
Llame a (212) 233-8100 right away if your employment has ended and you currently hold H-1B status.
Changing Employers on an H-1B Visa
Yes, this is possible. The law allows what is known as H-1B “portability.” This lets a worker change employers without leaving the United States or waiting for full approval of the new petition before starting work.
For portability to apply, the new employer must file a new LCA and a new H-1B petition before the worker begins the new job. Once that new petition has been properly filed, the worker can generally begin working for the new employer right away. There is no need to wait for a final USCIS decision.
This process carries specific technical requirements, and an error in the filing can jeopardize the worker’s legal status. Reviewing every employer change with an attorney before making the move protects both the worker and the new employer.
What Are the Most Common Reasons for H-1B Denial or RFE?
USCIS issues a Request for Evidence, known as an RFE, in certain cases. This happens when it believes the petition has not clearly demonstrated that the case meets the legal requirements. Receiving an RFE does not mean the case will be denied, but it does mean the response must be thorough and well documented.
The most common reasons include doubts about whether the position genuinely qualifies as a specialty occupation, and questions about whether the degree corresponds closely enough to the field. Scrutiny of the employer-employee relationship for client-site placements and wage discrepancies on the LCA are also frequent triggers.
A well-prepared case from the outset significantly reduces the likelihood of an RFE. When one is received, the quality and speed of the response largely determines the final outcome.
Why Choose Pollack, Pollack, Isaac & DeCicco for Your H-1B Visa?
Our firm was founded in 1955 by Arthur Pollack, a World War II veteran fluent in 13 languages. He dedicated his career to helping people navigate the U.S. immigration system. That mission continues today under the leadership of his son, Conrad E. Pollack, who has led our immigration department for more than three decades.
Our team brings over 100 years of combined legal experience and serves clients in Spanish, Chinese, Bulgarian, Russian, Hindi, Punjabi, and more. We have been recognized as one of the “Best Law Firms” in New York City by U.S. News & World Report and hold an AV Preeminent rating from Martindale-Hubbell, the highest level awarded through peer review.
When you retain Pollack, Pollack, Isaac & DeCicco, you work directly with a partner from your first meeting through the resolution of your case. We do not hand your matter off to an unfamiliar associate. That direct relationship, built over six decades of continuous immigration practice, is the foundation of how we work.
Llame a (212) 233-8100 to schedule a consultation with our immigration team.
Ask PPID
My employer registered me for the H-1B lottery, but I wasn’t selected. What are my options?
If you weren’t selected, your employer can register your case again in the next fiscal year’s lottery. In the meantime, depending on your background, other visa categories may be worth evaluating. This includes options based on your professional credentials or country of origin. An attorney reviews your full profile to identify whether a viable alternative exists while you wait for the next H-1B cycle.
I have a job offer from a university in New York City. Do I need to go through the H-1B lottery?
Likely not. Institutions of higher education and certain affiliated nonprofit research organizations are exempt from the annual H-1B numerical cap. This means your employer can file the petition directly without entering the lottery, which is a significant advantage in terms of timing and certainty. We confirm your specific employer’s exemption eligibility before moving forward with your case.
My H-1B expires in eight months, and my employer hasn’t started my green card process yet. Is it too late?
Eight months is tight, but not necessarily too late. The law permits extensions of H-1B status beyond the six-year limit under certain conditions. This requires specific steps in the green card process to be completed with enough lead time. It’s important to act immediately to evaluate which options remain available given the time left in your specific case.
I received a Request for Evidence from USCIS on my H-1B petition. How long do I have to respond?
The deadline to respond is generally specified in the RFE notice itself, and it’s usually several weeks, though the exact timeframe varies by case. Failing to respond within the stated deadline generally results in denial of the petition. It’s important for an attorney to review the full request as soon as possible. The type of evidence requested determines how the response should be prepared.
Serving Professionals and Employers in Manhattan and Brooklyn
Our main office is located in the Financial District of Manhattan, at 250 Broadway. We regularly serve professionals and employers based in Brooklyn and throughout New York City. Many of our clients come to us through family referrals. This reflects the kind of trust-based relationship we aim to build with every person we represent.
If your H-1B case eventually leads you to consider pursuing a green card, or if you’re evaluating other temporary work visa options beyond H-1B, our immigration team can guide you through the full picture, not just the immediate step in front of you. For individuals who may qualify based on extraordinary ability rather than specialty occupation, the O-1 visa follows an entirely different legal standard worth discussing.
More than 60 years of continuous practice. Over 100 years of combined legal experience. Direct attorney access on every case.
Llame a (212) 233-8100 para concertar una consulta.
Frequently Asked Questions About H-1B Visas
What’s the difference between an H-1B visa and an O-1 visa?
The H-1B requires that the position qualify as a specialty occupation and that the applicant hold the corresponding degree. It is subject to the annual numerical cap and lottery. The Visado O-1 is designed for individuals with extraordinary ability in their field. It does not require a specific degree in the same way, and it is not subject to any numerical cap or lottery.
Can I apply for a green card while holding an H-1B visa?
Yes. The H-1B visa permits what is known as “dual intent.” This means you can maintain your H-1B status while your employer simultaneously begins the green card process on your behalf. This sets it apart from many other temporary work visas, where pursuing permanent residency can create complications with your current status.
What happens if my employer goes out of business while I hold an H-1B visa?
If your employer closes or ceases operations, your H-1B status generally ends along with the employment. This triggers the same up-to-60-day grace period that applies to any termination. During that time, you can look for a new sponsoring employer, change visa categories, or leave the country. The specific circumstances of how and when the company closed can affect the details of your case.
Can small businesses sponsor an H-1B visa?
Yes. There is no minimum company size requirement to sponsor an H-1B visa. What the business does need to demonstrate, regardless of size, is that the position genuinely qualifies as a specialty occupation. It must also meet the wage obligations certified on the LCA and show a real, verifiable employer-employee relationship.
Schedule Your H-1B Visa Consultation
The H-1B process involves strict federal deadlines and an unpredictable lottery system. It also carries technical requirements that can determine your case’s outcome before USCIS reviews a single page.
Pollack, Pollack, Isaac & DeCicco has guided professionals from dozens of countries through this process for more than six decades. Let us do the same for you.
Llame a (212) 233-8100 to schedule a consultation with our immigration team.
Pollack, Pollack, Isaac & DeCicco, LLP
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