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H-1B Visa Legal Services
Overview of the H-1B Visa Program
The H-1B visa allows U.S. employers to hire foreign workers in specialty occupations that require specialized knowledge and at least a bachelor’s degree or equivalent. It supports industries like technology, engineering, healthcare, and education.
Step by Step Guide for CAP Subject H-1B Visas
1. Employer Registration for H-1B Cap
Employers must register online for the H-1B lottery during the designated registration period (usually in March). This is a weighted selection process based on wages, replacing the random lottery
Registrations are chosen by lottery. Only registered employers can file an H-1B petition if selected in the lottery.
2. Labor Condition Application (LCA)
The employer files a Labor Condition Application with the Department of Labor.
The LCA confirms that hiring the H-1B worker will not adversely affect wages and working conditions of U.S. workers.
Processing takes about 7 days.
3. Prepare and File Form I-129 Petition
The employer files Form I-129 (Petition for a Nonimmigrant Worker) with U.S. Citizenship and Immigration Services (USCIS).
Include the LCA approval, job offer details, educational credentials, and fees.
Premium processing is available for faster decision.
4. USCIS Processing
USCIS reviews the petition.
They may issue Requests for Evidence (RFE) if additional information is needed.
Approval typically takes several months unless premium processing is used.
5. Approval Notice (Form I-797)
Once approved, USCIS issues Form I-797, Notice of Action.
6. Visa Application (if outside the U.S.)
Apply for an H-1B visa at a U.S. consulate or embassy.
Attend an interview, provide biometric data, and submit required documents.
7. Entry to the U.S.
Upon visa approval, you can enter the U.S. up to 10 days before the employment start date.
Present your visa and approval notice to Customs and Border Protection.
H-1B Visa Initial Registration Process
Effective February 26, 2026, USCIS implemented a weighted selection process based on wages, replacing the random lottery. The weighted selection process for the 2026 H-1B registration (Fiscal Year 2027) is designed to prioritize foreign workers based on the wage levels of the jobs they are offered, aiming to favor higher-paid and skilled workers in the lottery.
Wage Levels and Multiple Entries
USCIS assigns wage levels to each H-1B registration based on the wage that the employer agrees to pay the beneficiary, benchmarked against the Department of Labor’s Occupational Employment and Wage Statistics (OEWS).
There are four wage levels (Level I to Level IV), with Level IV representing the highest wages.
Registrations are assigned multiple "entries" into the lottery pool depending on the wage level offered:
Level IV Wage: Registration gets 4 entries
Level III Wage: Registration gets 3 entries
Level II Wage: Registration gets 2 entries
Level I Wage: Registration gets 1 entry
This means the more the employer pays (or the higher the wage level the job falls into), the greater the chance of selection because the registration is effectively entered multiple times.
How Wage Levels Are Determined
Wage levels are based on the area of employment (geographic location), job classification (Standard Occupational Classification or SOC code), and the employer-offered wage.
Employers must provide detailed information about the job, including the wage level classification during the registration.
USCIS uses the provided wage data and OEWS tables to categorize each registration accordingly.
Impact on Registration Odds
A registration at Level IV wage is four times more likely to be selected than one at Level I wage.
If the number of registrations exceeds the annual H-1B cap, the weighted system increases the selection probability for higher-wage jobs.
The goal is to reduce the lottery's randomness and better align it with the policy objective of attracting skilled and highly compensated workers.
Fraud Prevention Measures
USCIS requires employers to certify the bona fide job offer and be able to prove the wage level claimed.
Fraudulent claims about wage levels can lead to denial of petitions and penalties.
H-1B Cap and Cap-Exempt Petitions
Petition to Recapture H-1B Status
On January 17, 2017, the DHS adopted a final rule in 8 CFR 214.2(h)(13)(iii)(C), providing that the time spent outside of the United States does not count against the individual's maximum period of stay in H-1B status. The amendment makes clear that such time may be recaptured in a subsequent H-1B petition at any time before the alien uses the full period of authorized H-1B admission. In addition, the DHS made it clear that although not codified, specify that the “remainder” period of the initial 6-year admission period is that full admission period minus any time that the H-1B nonimmigrant worker previously spent in the United States in valid H-1B or L-1 status.
This policy allows time spent inside the United States in any other nonimmigrant status (i.e., any nonimmigrant status other than H-1B or L-1) to be “recapturable." Section 214(g)(4) of the Immigration and Nationality Act (INA) states that `the period of authorized admission' may not exceed 6 years, and because `admission' is defined as `the lawful entry of the alien into the United States after inspection and authorization by an immigration officer' only time spent in the United States as an H-1B counts towards the maximum.
Labor Condition Application (LCA)
Employers must obtain a certified LCA from the Department of Labor before filing. The LCA requires the employer to certify that:
Employers must keep public files documenting compliance.
Job Offer and Employee Qualifications
Employer’s Job Offer
Employee Qualifications
Employer Obligations and Compliance
H-1B Filing Fees (Effective June 12, 2026)
Fee Type
Employers with 26+ Employees
Employers with ≤25 Employees / Nonprofits
Registration Fee
$215 (per beneficiary)
$215 (per beneficiary)
I-129 Base Filing Fee
$780
$460
ACWIA Training Fee
$1,500
$750
Fraud Prevention Fee
$500 (initial/transfer only)
$500
Asylum Program Fee
$600
$300
Public Law 114-113 Fee*
$4,000 (large employers with >50% H-1B or L-1 workers)
N/A
Premium Processing (optional)
$2,500
$2,500
The new $100,000 H-1B petition fee rule introduced by the Trump administration became effective on September 15, 2025.
The rule imposed an additional $100,000 fee on employers filing new H-1B visa petitions.
The fee specifically targeted companies that employ a large number of H-1B workers, particularly those who rely heavily on foreign skilled labor, such as technology firms, universities, and hospitals.
The intent was to discourage reliance on foreign labor by making it prohibitively expensive for employers to hire new H-1B applicants.
This fee was implemented through regulations by the Department of Homeland Security without direct congressional approval.
The fee applies to employers filing new H-1B visa petitions for foreign workers, primarily impacting:
Large tech companies and firms with significant numbers of H-1B workers.
Universities and hospitals relying on international talent.
Employers in any sector that seeks to hire new foreign professionals under the H-1B program.
Employers filing extensions or transfers of existing H-1B workers, or smaller firms with fewer H-1B employees, were generally not subject to this fee.
Legal Challenge:
The $100,000 fee was struck down in June 8th, 2026 by an Obama appointed U.S. federal judge who ruled that the administration exceeded its authority by imposing the fee without congressional approval.
The Trump Administration is currently appealing this ruling.
Premium Processing
Fee Exemptions
Wage and Labor Condition Requirements
H-1B Wage Levels
Step-by-Step H-1B Petition Process
1. Complete electronic registration and pay $215 registration fee per beneficiary.
2. USCIS applies weighted lottery and notifies selected registrations.
3. File certified LCA with the Department of Labor.
4. Prepare supporting documentation (education, job offer, wage evidence).
5. File Form I-129 with USCIS, attach fees and documents.
6. Respond promptly to Requests for Evidence (RFE).
7. Upon approval, beneficiary applies for visa or change of status if in the U.S.
8. Maintain wage payment and reporting compliance throughout employment.
Renewals, Employer Change, Transfers, and Tolling
Compliance Audits and Risk Management
Important Case Law Affecting H-1B Petitions
H-1B Visa Frequently Asked Questions (FAQs)
1. What is an H-1B visa? A temporary visa for specialty occupations requiring specialized expertise.
2. Who is eligible? Applicants with at least a bachelor’s degree (or equivalent) in a related field.
3. Length of stay? Up to 3 years initially, extendable to 6 years (and beyond during green card processing).
4. What is the H-1B cap? 65,000 visas yearly plus 20,000 for U.S. master’s degree holders.
5. Can I change employers? Yes, with a new petition and under certain conditions.
6. Can family accompany me? Yes, via H-4 visas for spouses and children under 21, some with work authorization.
7. What if the petition is denied? You receive reasons and may appeal or refile.
8. Can I apply for a green card while on H-1B? Yes.
9. Required documents? Passport, education proof, job offer letter, LCA, employer letter, specialty occupation evidence.
10. Application costs? Vary by employer size and fees; employers typically pay.
11. International travel? Allowed with a valid visa stamp; apply for stamping if absent.
12. Job duty changes? Significant changes may require amended petitions.
13. Can employers file multiple petitions? Yes, for eligible employees.
© 2026 Immigration Law Office of Mark Carmel. All rights reserved.
Contact: VisaLawyers@aol.com | Phone: (561) 459-7207
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