H-1B Visa Lawyer for Employers and Specialty-Occupation Workers

By Dr. Jae Francis Lee, Immigration Attorney, Francis Law Center · Last reviewed September 19, 2026

The H-1B is the temporary work visa for specialty occupations – jobs that normally require at least a bachelor’s degree in a directly related field (INA §214(i); 8 CFR 214.2(h)(4)). Only an employer can file it, and most new petitions must first win the cap lottery. Francis Law Center represents employers and workers nationwide from Chicago, Schaumburg, and Madison.

Key Takeaways

• The cap is 65,000 visas plus 20,000 for U.S. master’s holders (INA §214(g)). USCIS reached the FY 2027 cap on July 17, 2026; FY 2028 registration is expected in March 2027.
• The $100,000 Proclamation 10973 payment is not being collected under a June 8, 2026 court order, though the proclamation was extended to September 21, 2027 (USCIS FAQ).
• First-petition government fees run $960 to $7,380 depending on employer type, size, and H-1B headcount, plus $2,965 premium processing (G-1055).
• Laid off? You keep status for up to 60 days (8 CFR 214.1(l)(2)); DHS proposed eliminating that grace period on September 11, 2026.
• You can start a new job once the new employer files a nonfrivolous petition (INA §214(n)).

Who Qualifies for an H-1B Visa?

The job. A specialty occupation requires, as a minimum for entry, a bachelor’s degree or higher in a directly related specific specialty, or its equivalent (8 CFR 214.2(h)(4)(ii)), under one of four tests in (h)(4)(iii)(A): the degree is normally the minimum for the position; it is common in the industry or the job is unusually complex; the employer normally requires it; or the duties are that specialized. Since the 2025 modernization rule (89 FR 103054), a range of directly related degrees is acceptable, and USCIS should defer to a prior approval for the same parties and facts absent material error or change (8 CFR 214.1(c)(5)).

The worker. A U.S. degree, a foreign equivalent, an unrestricted state license, or education plus progressive experience at three years per missing year of college ((h)(4)(iii)(C), (D)(5); eligibility guide).

The employer. Any U.S. employer with a tax number, a certified Labor Condition Application (LCA), and real work. Staffing placements qualify when contracts or work orders show the work, with the end client’s requirements weighing most. A founder owning more than half the company may be sponsored, limited to 18 months on the first petition and extension ((h)(9)(iii)).

How Does the H-1B Lottery Work for FY 2027 and FY 2028?

Most new petitions must first be selected in the March registration. Congress caps new approvals at 65,000 per fiscal year plus 20,000 for U.S. master’s or higher degrees (INA §214(g)); registration costs $215 per candidate (registration process). Since February 27, 2026 selection is weighted by DOL wage level: Level IV enters the pool four times, Level III three, Level II twice, Level I once (90 FR 60864); a worker with multiple registrations enters at the lowest level, and the petition must prove the wage meets the level claimed (8 CFR 214.2(h)(8)(iii)).

FY 2027: registration March 4–19, 2026; selections by March 31; filing from April 1; both caps reached July 17, 2026, no second round (cap alert). FY 2028 registration should open in March 2027 for an October 1, 2027 start.

Cap-exempt employers file year-round: colleges and universities, their affiliated nonprofits, and nonprofit or governmental research organizations (8 CFR 214.2(h)(8)(iii)(F)), including the University of Wisconsin–Madison and the University of Illinois Chicago. A private employer’s worker is also exempt while at least half the work is at such an institution for its mission ((F)(4)).

Is the $100,000 H-1B Fee Still in Effect?

Not while the court order stands. As of September 19, 2026, USCIS is not collecting the $100,000 payment that Proclamation 10973 attached to new petitions filed on or after September 21, 2025 for workers outside the United States without a valid H-1B visa. On June 8, 2026, the U.S. District Court for the District of Massachusetts vacated the implementing guidance (State of California v. Mullin); the First Circuit denied a stay on July 24, 2026, and the appeal is pending. USCIS says it will collect the payment only if the order is lifted (USCIS FAQ; our analysis). On September 18, 2026, the President extended it to September 21, 2027, so the payment resumes if the courts lift the order. It did not apply to workers in the United States granted an extension, transfer, amendment, or change of status, or to holders of valid H-1B visas.

Separately, on August 25, 2026 DHS proposed a $103,265 fee on every cap-subject petition (91 FR 54817); it is not in effect, and comments close September 24, 2026.

How Much Does an H-1B Petition Cost in 2026?

First-petition government fees total $960 for a university, $2,010 for a small employer, and $3,380 for most others (Form I-129; G-1055, September 9, 2026 edition):

• I-129: $780 paper, $730 online; $460 for nonprofits and small employers (25 or fewer full-time-equivalent employees).
• Asylum Program Fee: $600; $300 small employer; $0 nonprofit.
• ACWIA fee: $1,500; $750 for 25 or fewer employees; universities, affiliated nonprofits, and nonprofit or governmental research organizations exempt.
• Fraud Prevention and Detection: $500 on initial petitions and changes of employer.
• Public Law 114-113: $4,000 for employers with 50 or more U.S. employees, more than half in H-1B or L-1 status – since September 9, 2026 on every petition except amendments without extensions (91 FR 51360); sunsets September 30, 2027.
• Premium processing: $2,965 for USCIS action within 15 business days; regular times: USCIS processing-times tool.
• H-4 dependents: Form I-539 $470 paper, $420 online; premium processing $2,075.

The employer must bear the ACWIA, fraud, and Public Law fees, LCA costs, and attorney fees (20 CFR 655.731(c)(9)–(10)).

What Are the Steps to File an H-1B Petition?

• Set the wage. The offered wage must be at least the higher of the actual wage paid to similar employees and the DOL prevailing wage for the worksite (20 CFR 655.731); the level also sets lottery odds.
• Register or confirm exemption. Cap-subject hires need a selected registration; cap-exempt employers, extensions, and cap-counted transfers skip it.
• Certify the LCA. File Form ETA-9035 in DOL’s FLAG system up to six months before the start date; certification takes seven working days. Post the ten-day notice before filing; keep the public access file.
• File Form I-129 with the H supplement, certified LCA, degree and evaluation, job description, contracts for third-party work, wage-level evidence, and fees.
• Get the status or the visa. A worker in valid U.S. status changes status on the same petition; a worker abroad takes the approval to a U.S. embassy. An F-1 student on OPT with a timely cap-subject change-of-status petition keeps status and work authorization until the following April 1 or the approved start date, whichever is earlier (8 CFR 214.2(f)(5)); the September 15, 2026 fixed-admission rule for F-1 students does not change cap-gap (91 FR 44976).

Can You Change Employers, Move Worksites, or Stay Beyond Six Years?

Changing employers. You may begin work for a new employer once it files a nonfrivolous petition or, if later, on the requested start date, if you were lawfully admitted and have not worked without authorization (INA §214(n); 8 CFR 214.2(h)(2)(i)(H)). No new lottery if you were already cap-counted; the $500 fraud fee applies.

Moving worksites. A move outside the LCA’s area requires a new LCA and an amended petition filed before the move (Matter of Simeio Solutions, 26 I&N Dec. 542 (AAO 2015); 8 CFR 214.2(h)(2)(i)(E)); so can material changes in duties or pay.

Extensions. Initial approval runs up to three years; the ordinary maximum is six ((h)(9)(iii)(A)(1), (h)(15)(ii)(B)(1)). Beyond that: one-year extensions if a PERM or I-140 was filed at least 365 days earlier (AC21 §106; (h)(13)(iii)(D)), and three-year extensions with an approved I-140 and no visa number available (AC21 §104(c); (h)(13)(iii)(E)). Absences over 24 hours can be recaptured ((h)(13)(iii)(C)). H-1B permits immigrant intent ((h)(16)(i)), so pursuing a green card does not endanger it.

What Happens if You Are Laid Off on an H-1B?

You keep lawful status for up to 60 consecutive days after employment ends, or until your I-94 expires if sooner (8 CFR 214.1(l)(2)). It is discretionary and does not authorize work, but gives you time to have a new employer file (you start on filing), to request a change of status (H-4, B-2, F-1) on Form I-539, or, with an approved I-140, to apply for a compelling-circumstances work permit (8 CFR 274a.12(c)(35)). Leaving in time avoids a status violation (grace-period explainer).

On September 11, 2026, DHS proposed to eliminate the 60-day grace period (91 FR 57807); comments are due November 10, 2026, and the current regulation stands until a final rule. Employers must notify USCIS when employment ends ((h)(11)(i)(A)) and pay reasonable return transportation when the dismissal is theirs ((h)(4)(iii)(E)); until the termination is bona fide, LCA wage liability continues.

What Should H-1B Workers Know About Visa Stamping and Travel?

Since September 6, 2025, applicants generally must interview in their country of nationality or residence, interview waivers no longer cover most H-1B renewals, and since December 15, 2025 H-1B and H-4 applicants must set social media accounts public for online-presence review. The State Department’s August 2026 table showed petition-based appointments one to four-plus months in India and Mexico; check the current table first.

H-4 dependents. Spouses and unmarried children under 21 hold H-4 status ((h)(9)(iv)). A spouse of a worker with an approved I-140 or AC21 §106 extension can apply for a work permit (274a.12(c)(26)); since October 30, 2025 renewals get no automatic extension, so file 180 days early.

How Francis Law Center Handles H-1B Cases

• Eligibility and strategy – occupation, degree match, wage level, cap or cap-exempt route, and the calendar.
• Wage, LCA, and compliance – prevailing wage, ETA-9035, posting, public access file.
• The petition – written to the four regulatory tests, with contracts and wage-level evidence, to avoid a request for evidence.
• Status maintenance – amendments, transfers, extensions.
• The green card – PERM and I-140 timing so AC21 extensions are in place before year six.

Why Choose Francis Law Center

Dr. Jae Francis Lee represents employers and workers nationwide from offices in Chicago, Schaumburg, and Madison. The firm handles H-1B, E-2, L-1, O-1, TN, PERM, and EB-1/EB-2 cases in English and Spanish, answers common employer questions, and says early when a role will not qualify.

Frequently Asked Questions

Can I get an H-1B visa without an employer sponsor?

No. Only a U.S. employer can file Form I-129. A founder may be sponsored by a company they majority-own, limited to 18 months on the initial approval and first extension (8 CFR 214.2(h)(9)(iii)).

Is the $100,000 H-1B fee being charged right now?

Not while the court order stands. A court vacated the guidance implementing Proclamation 10973 on June 8, 2026; USCIS is not collecting the payment during the appeal, though the proclamation was extended to September 21, 2027.

How long does the H-1B process take?

Cap-subject cases: register in March, selections by March 31, file from April 1, start October 1; transfers and cap-exempt petitions file year-round. Premium processing ($2,965) means USCIS action within 15 business days; a visa interview abroad can add months.

Can I change jobs while on an H-1B?

Yes. Under INA §214(n) you may start once the new employer files a nonfrivolous petition, if you were lawfully admitted and have not worked without authorization.

How many years can I stay on an H-1B?

Six, plus recaptured time abroad. Beyond six: one-year extensions 365 days after a PERM or I-140 filing, or three years with an approved I-140 and no visa number available (8 CFR 214.2(h)(13)(iii)).

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