Common questions on H-1B filing, extensions beyond 6 years, change of employer, the 60-day grace period, and I-140 / I-485 implications. For general information only — please book a consultation for case-specific guidance.
The H-1B is a work visa that a U.S. employer files for a foreign professional — the individual cannot file it alone.
Three basic requirements:
The employer must also obtain a certified LCA from the Department of Labor and commit to paying the required wage.
It must require highly specialized knowledge and normally require at least a bachelor's degree. The role must involve the theoretical and practical application of highly specialized knowledge, and require at least a bachelor's degree (or its equivalent) in a field directly related to the duties.
"Directly related" means there is a logical connection between the degree and the duties. The applicant does not have to show an exact match between the field of study and the position — the point is to explain how the knowledge gained satisfies the requirements of the job.
The regulations also require that a bachelor's degree be "normally" the minimum entry requirement. "Normally" is defined as usual, typical, common, or routine — not "always" and not "more often than not."
For example, the Department of Labor's Occupational Outlook Handbook states that market research analysts "typically need a bachelor's degree," which supports treating that position as meeting the degree requirement.
At least a bachelor's degree, or its equivalent, in a field directly related to the position — and it does not have to be a U.S. degree.
There must be a real connection, but not an exact match. A single position can accept several fields of study, as long as each one is directly related to the duties.
Example: for a data analyst role, candidates with computer science, statistics, or data science backgrounds may all qualify — but the petition must explain the connection for each field:
Where no connection between the field and the duties is apparent, an RFE is likely.
Experience can substitute, but the conversion is demanding. The general standard is three years of specialized training or work experience for one year of college (the 3-for-1 rule).
So someone with no college education generally needs roughly 12 years of relevant professional experience to be treated as holding the equivalent of a bachelor's degree. In practice this requires an evaluation from a qualified evaluator.
Yes. The employer must pay at least the "required" wage — the higher of the following two:
Most new petitions by private employers are cap-subject, but there are two situations where no lottery is needed.
First: cap-exempt employers. Employment with these organizations may be filed at any time, without a cap number:
Under the current rules, a nonprofit research organization no longer has to show that it is "primarily engaged" in research — it is enough that research is a fundamental activity of the organization. Research must still be an important and substantial activity, but it need not be the organization's primary one.
Second: beneficiaries already counted against the cap. If a person was previously counted and remains within the six-year limit, no new lottery is required to:
Beneficiaries holding a U.S. master's degree or higher from an accredited institution. The annual cap has two parts: 65,000 regular numbers plus 20,000 under the advanced degree exemption.
Eligible registrations are included in the regular selection first and, if not selected, in the master's cap selection — effectively two chances. The degree must already be earned at the time the I-129 H-1B petition is filed, from a U.S. accredited institution.
Yes, but the first approval is limited to 18 months and the requirements are stricter. Current rules expressly recognize that a company can be the "U.S. employer" even where the H-1B worker is its sole owner, provided that:
The remaining time may be spent on ownership and management duties that are not specialty occupation work — signing leases, seeking investors, negotiating contracts, developing business plans, dealing with vendors, recruiting, and the like.
The 18-month limit: where the H-1B worker owns more than 50% of the company or has actual control (majority voting rights), the first approval is limited to 18 months; an amended petition filed together with an extension is likewise limited to 18 months.
This route particularly suits F-1 students who started a company during OPT or STEM OPT and want to keep working for it afterward. Because the primary duties must still be specialty occupation work, it fits professions such as physicians, accountants, attorneys, designers, and architects.
If you already hold H-1B status and want to start a company, concurrent employment with your own company is also possible.
Yes — but whether the role is a specialty occupation is judged by the third party's requirements.
Current rules no longer require the employer to prove control over hiring, firing, supervision, and pay. Instead, the employer must show a bona fide job offer for a specific position — including remote work, other U.S. locations, or a third-party worksite — that will exist as of the requested H-1B start date.
Where the beneficiary is staffed to a third party, USCIS looks to the third party's requirements for the position in deciding whether it qualifies as a specialty occupation.
Generally October 1 — and F-1 students can bridge the gap with cap-gap. The earliest start date for a cap-subject H-1B is the first day of the new fiscal year, October 1.
Cap-gap is the bridge for F-1 students: if the student is selected and the H-1B petition is filed before OPT or STEM OPT expires, the student may remain and continue working after the work authorization expires, up to the H-1B start date.
Under the current rules, cap-gap has been extended from the former cutoff of September 30 to April 1 of the following year, or the H-1B start date, whichever is earlier. The change avoids forcing students to stop working after September 30 when USCIS adjudication runs late.
Registration usually opens in early March for about two weeks, with results announced by the end of March. USCIS announces the exact dates each year (typically in February). The general timeline is:
If the cap is not reached in the first round, USCIS may run a second selection later in the year from the registrations that were not selected.
Registrations no longer all have the same odds — weight depends on wage level. USCIS assigns weight based on the OEWS wage level that corresponds to the offered position:
| Wage level | Selection weight |
|---|---|
| Level I | 1 |
| Level II | 2 |
| Level III | 3 |
| Level IV | 4 |
A Level IV beneficiary enters the pool with four selection entries; Level III with three; Level II with two; Level I with one.
Higher wage levels therefore have a better chance of selection, but all four wage levels remain eligible to be selected.
No. The rule is weighted selection, not a ranking that fills the cap from the highest wage level down.
Odds run Level IV > Level III > Level II > Level I, but Level IV is not guaranteed selection, and Level I is not shut out.
No — it is not the raw salary figure. USCIS compares three things:
It then determines which OEWS wage level that wage reaches for that occupation in that area.
For example, a salary of $120,000 may fall at Level I, Level II, Level III, or even Level IV depending on the occupation and the city. So the dollar amount alone does not tell you the selection level.
The highest OEWS wage level that the beneficiary's offered wage equals or exceeds.
Example: for a position where the local OEWS levels are Level I: $80,000 / Level II: $100,000 / Level III: $125,000 / Level IV: $150,000 —
Not necessarily — they are two different concepts.
The weighted selection rule looks at where the beneficiary's proffered wage falls against the OEWS wage levels. The LCA wage level, by contrast, is the prevailing wage level the employer determines based on the education, experience, skills, and other requirements of the position.
In some cases the wage level used for registration will not be the same as the one listed on the LCA.
Use the lowest of the applicable wage levels. If the beneficiary will work at multiple locations, compare the OEWS wage level for each worksite.
Example: the wage equals Level III in Dallas and Level II in Austin. Even if Dallas is the primary worksite, the registration should generally enter the weighted selection at Level II.
USCIS uses the bottom of the range.
For an offered salary of $100,000–$130,000, the wage level is determined using $100,000 against the OEWS wage levels — not $130,000.
The lowest wage level controls. USCIS still uses beneficiary-centric selection: no matter how many employers register the same person, that person counts as one unique beneficiary.
Example: Company A registers at Level IV, Company B at Level III, and Company C at Level I. The beneficiary enters the selection process with the weight for Level I, not Level IV.
So multiple registrations do not create extra chances — and a low-wage-level registration can actually drag down that beneficiary's overall selection weight.
Yes. The weighted selection rule did not eliminate the advanced degree exemption for U.S. master's or higher degrees (commonly called the master's cap).
Eligible beneficiaries still participate in the additional 20,000 U.S. advanced degree cap numbers. The rule changed the weight given to different wage levels at selection — not the regular cap or master's cap structure.
An employer may pay above the minimum prevailing wage, but the offer must be genuine.
For example, a position that might only require $90,000 can be offered at $130,000; if $130,000 reaches Level III for that occupation and area, the registration may use Level III.
But the wage must reflect a bona fide job offer. An employer cannot claim a higher wage on the registration to improve its odds and then reduce the wage after selection. USCIS may review the registration, the petition, and any later amended petition for wage manipulation of the selection process.
Be very careful here. If an employer uses a higher wage to obtain a higher wage level at registration and then files a new or amended H-1B petition lowering the wage to a level that corresponds to a lower wage level, USCIS may examine whether the change was made to unfairly improve the original chance of selection.
If USCIS concludes that the new or amended petition is part of selection manipulation, the rule allows USCIS to deny the petition.
The petition must support the wage level used at registration.
The proffered wage in the petition must at least meet the prevailing wage for the SOC code, worksite, and OEWS wage level claimed on the registration. USCIS may also ask the employer for evidence supporting the wage level claimed at registration.
Weighted selection still compares against the OEWS wage levels. Even where an employer lawfully relies on another prevailing wage source, such as a private wage survey, the selection weight is based primarily on OEWS.
If the offered wage falls below the corresponding OEWS Level I but still satisfies H-1B wage requirements under another lawful wage source, the registration will generally be treated as Level I.
Not necessarily — it depends on the actual offered wage. Weighted selection does not assign weight by years of experience, degree, or OPT status. It compares the beneficiary's proffered wage against the OEWS wage levels for that SOC code and worksite.
A recent graduate on OPT whose offer reaches Level II, III, or IV participates at that higher weight. If the offer only reaches Level I, the registration participates at the Level I weight.
Not necessarily. Wage level is only one factor affecting the odds of cap selection. The wage should still reflect the actual position, the company's pay structure, the market, and what the employer is genuinely prepared to pay.
A higher wage claimed at registration must also be supported in the H-1B petition and during the actual employment. Setting a wage the company is not prepared to pay, purely to improve selection odds, is not advisable.
An H-1B filing includes at least three categories of documents. The exact documents depend on the case and should be reviewed by counsel.
Usually not. A foreign national in the U.S. can obtain a different nonimmigrant status in two ways:
Generally the petitioning employer can request a change of status to H-1B on Form I-129, so you do not have to leave the U.S. To qualify, you must have:
Some nonimmigrant categories are not eligible for change of status — consult counsel.
Exception: if your employer cannot file the I-129 before your current status expires, you typically need to obtain an H-1B visa stamp at a U.S. consulate abroad after USCIS approves the petition, then apply for entry in H-1B status.
It depends on whether the petition requests a change of status or an extension of status.
Change of status pending: only beneficiaries who continue to maintain nonimmigrant status can request a change of status. If you depart the U.S. while the request is pending, USCIS treats it as abandoned.
In that case, even if USCIS approves the I-129, the approval is issued as consular notification and does not grant H-1B status. You typically need to obtain an H-1B visa stamp at a U.S. consulate abroad and apply for entry through CBP.
Extension of status pending: you must be in the U.S. when the petition is filed. However, departing while an extension is pending is not generally a basis to deny it. The employer can ask USCIS to send the approval notice to the consulate where you will apply for the visa.
Generally up to 6 years, counting only time physically spent in the U.S. So an H-1B holder can spend at least 2,190 days in the U.S.
Common exceptions extend this limit — see the questions below.
Yes, if at least 3 years of H-1B time remain. Even if your prior H-1B did not reach 3 years, a new H-1B may still be approved for up to 3 years.
Subtract the days you previously spent physically in the U.S. in H-1B status from the 2,190-day cap. If the remainder is less than 3 years, the new employer can only request the remaining time.
No. Only time physically spent in the U.S. counts toward the 6-year cap. Periods abroad longer than 24 hours can be added back — this is known as "recapture" time.
It is the employer's responsibility to request and document recaptured time. Supporting documentation includes:
The employer can submit these documents together with the H-1B petition.
Generally yes. If you previously worked in the U.S. in H-1B status but have not exhausted the 6-year maximum, the unused H-1B time is generally not lost when you change to F-1, H-4, L-2, or another nonimmigrant status.
If an employer later files an H-1B petition for you, you may generally request the remaining time. For example, if you used 4 years of H-1B and then changed status, roughly 2 years may still be available.
Do you need the lottery again? If your earlier H-1B was cap-subject and you were already counted against the H-1B cap, a petition for the remaining time generally does not require you to re-enter the lottery.
However, if your only prior H-1B was with a university, research institution, or another cap-exempt employer, moving to a regular private employer does not by itself make you cap-exempt. Whether you are subject to the H-1B cap requires separate analysis.
In addition, if you spent time entirely outside the U.S. during your earlier H-1B period, some of that time may be added back through recapture, so the remaining time is sometimes longer than expected.
Determining whether you can return to H-1B therefore generally requires confirming three things:
Yes, in specific situations. Your employer can file Form I-129 to request the extension. The two common bases are:
No. The regulations authorizing extensions beyond 6 years apply to individuals who currently hold or previously held H-1B status.
Example: you previously held H-1B for 6 years and had no basis to extend at the time, then changed to O-1. During your O-1, an EB-1/EB-2/EB-3 I-140 is approved, but the immigrant visa is unavailable based on your priority date. Your employer can file an I-129 requesting a 3-year H-1B extension.
The petition can request a change of status if you remain in the U.S. and meet the other change-of-status requirements, or the employer can request consular notification. Petitions approved for consular processing are forwarded to the State Department; after review, the U.S. consulate may issue a visa for entry.
You can start work as soon as the new employer files — no need to wait for approval. Under H-1B portability, you may begin work for the new employer once a non-frivolous H-1B petition is filed on your behalf, or on the start date listed in the petition (whichever is later). Confirm the rule applies to your situation with counsel.
If the new employer's I-129 is approved: you may continue working for the new employer until the employment end date specified in the petition.
If the I-129 is denied: you may continue working for your previous employer if your prior authorized employment is still valid, but the temporary work authorization based on the new petition ends upon the denial.
Being laid off does not mean your only option is to leave within 60 days. If you are terminated — voluntarily or involuntarily — you may take any of the following actions, if eligible, to maintain authorized stay:
If you take one of these actions within the up-to-60-day grace period, your authorized stay (the date on your I-94) may extend beyond 60 days even though you lost your prior nonimmigrant status.
If you take no action during the grace period, you and your dependents may need to leave the U.S. within 60 days or by the end of your authorized validity period, whichever is shorter.
For up to 60 days after your job ends, you are still treated as maintaining your status. Under 8 CFR 214.1(l)(2), workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status (and their dependents) are considered to continue maintaining status for up to 60 days after employment ends, or until the I-94 expires, whichever is shorter — whether the termination was voluntary or not.
During this period, eligible H-1B workers can begin work immediately once a new employer files an H-1B petition, without waiting for approval.
It begins the day after employment terminates, generally based on the last day wages or salary were paid.
It depends on whether the position is the same and whether the original petition is still valid.
At most once during each approved I-129 validity period.
Example: if Employer A terminates you, USCIS may exercise discretion to treat you as maintaining status for up to 60 days. If you then receive a new H-1B approval with Employer B and are later terminated, you may again be eligible for up to 60 days during Employer B's I-129 validity period.
Once you leave the U.S., the grace period ends. To re-enter during the up-to-60-day window, you must use a valid nonimmigrant visa.
Yes. If your spouse holds an EAD or status-based work authorization, that work authorization continues to be valid during the up-to-60-day grace period.
The grace period generally does not apply. If you are terminated while abroad and the employer gives no notice period, or the notice period ends before you can return, you must seek another nonimmigrant entry.
If you do return before the notice period ends — that is, before the effective termination date — the grace period may apply on a discretionary basis.
Not automatically — an application is required, and only spouses are eligible. H-4 dependents do not receive work authorization from the status itself; only H-4 spouses who file and obtain work authorization from USCIS may work.
An H-4 spouse can file Form I-765 if the H-1B principal:
H-4 status follows the H-1B principal, but time in H-4 does not use up the 6 years.
H-4 dependents are generally tied to the principal's status period. If the principal receives an extension beyond 6 years, the dependents may extend H-4 status for the same period.
Time spent in H-4 status does not count toward the 6-year H-1B cap, so even someone who has spent 6 years in H-4 may still receive 6 years of H-1B.
No — you do not need H-1B status first. Your employer can file an I-140 immigrant petition (green card) for you while you are an F-1 student on OPT.
Nonimmigrant status is generally for a temporary entry for a specific purpose, and you must intend to depart at the end of your authorized stay. F-1 also requires the student to intend to leave the U.S. after the temporary stay and to maintain a foreign residence they do not intend to abandon.
However, a student can at the same time be the beneficiary of a pending or approved I-140 and still show that they intend to depart if required.
Generally not. A pending I-485 does not itself confer lawful nonimmigrant status, and it does not cure a violation of nonimmigrant status.
But if you filed the I-485 while in H-1B status, the expiration of H-1B status while the I-485 is pending generally does not cost you eligibility to adjust — as long as you did not work without authorization and are not otherwise inadmissible.
The timing of the withdrawal is what matters — 180 days after approval is the dividing line.
If the I-140 is withdrawn before it has been approved for 180 days:
If the I-140 is withdrawn after it has been approved for 180 days or more:
In either case, you lose the priority date only if the I-140 approval is revoked for cause — for example, employer error, fraud, or willful misrepresentation of a material fact.
Once the I-485 has been pending for 180 days, the job offer can be ported to a new position under AC21.
If you leave or are laid off before the I-485 reaches 180 days: porting is not yet available, so it depends on whether the original employer keeps the job offer open. If the employer intends to employ you once the green card is approved, the application generally remains viable; if the employer withdraws the offer, the I-485 loses its basis.
Generally yes — a PERM cannot be transferred to a new employer. A new employer must run the full process again: obtain a prevailing wage determination, conduct the required recruitment, and file a new PERM. The prior employer's PERM cannot be used.
Exception: if you have already filed the I-485 and qualify for AC21 portability (I-485 pending 180 days, new job in the same or a similar occupational classification), a new PERM may not be necessary.
It depends entirely on the stage you have reached.
Laid off during PERM: the prevailing wage determination and recruitment already completed are no longer usable, and a new employer must start the process over.
Note also that even if you are not laid off, if the company lays off other employees in the same occupation, it generally must wait six months before filing a PERM for you.
Laid off during the I-485 stage: