Your H-1B visa is your livelihood. Know exactly where the law stands.

The H-1B visa program is the primary pathway for U.S. employers to hire skilled foreign workers in specialty occupations. Understanding the process, requirements, and your legal rights is essential whether you are an employee or an employer navigating the system.

Understanding the H-1B Visa Program

The H-1B visa is a nonimmigrant work visa that allows U.S. employers to temporarily employ foreign nationals in occupations that require specialized knowledge and at least a bachelor’s degree in a specific field. Created under the Immigration and Nationality Act, the program is administered by U.S. Citizenship and Immigration Services (USCIS) and subject to an annual cap of 85,000 new visas — 65,000 under the regular cap plus 20,000 for workers who hold an advanced degree from a U.S. institution.

In 2026, the H-1B landscape has shifted substantially. A presidential proclamation issued in September 2025 introduced a $100,000 supplemental fee for certain new H-1B petitions, primarily affecting applicants being processed through consular offices abroad. Multiple federal lawsuits are challenging this fee, including one led by California Attorney General Rob Bonta and a coalition of 20 state attorneys general. The fee is scheduled to expire in September 2026 unless extended.

Additionally, USCIS finalized a rule effective February 27, 2026, replacing the purely random H-1B lottery with a wage-weighted selection process. Under this new system, registrations for positions at higher prevailing wage levels receive more entries into the selection pool: Level IV positions receive four entries, Level III receives three, Level II receives two, and Level I receives one. This change is intended to prioritize higher-skilled and higher-paid positions while maintaining a random element within each tier.

For workers in California — home to Silicon Valley, major research universities, and some of the nation’s largest H-1B-sponsoring employers — these changes have particular significance. California’s Assembly Bill 692, effective January 1, 2026, also prohibits employers from requiring workers to repay training, relocation, or employment-related costs upon separation, with penalties of $5,000 or actual damages.

Your Rights as an H-1B Worker

H-1B workers have substantial legal protections under federal immigration law and California employment law. Understanding these rights is critical, especially in periods of policy uncertainty.

Wage protections. Under the Labor Condition Application requirements, employers must pay H-1B workers the higher of the prevailing wage for the occupation in the area of employment or the employer’s actual wage for similarly employed workers. Employers cannot pass H-1B filing fees on to the worker — the employer bears all USCIS filing fees, ACWIA training fees, and fraud prevention and detection fees. In California, AB 692 now also prohibits stay-or-pay provisions that require workers to repay training or relocation costs if they leave their employer.

Portability and mobility. The American Competitiveness in the Twenty-First Century Act (AC21) established H-1B portability, allowing workers to begin employment with a new employer as soon as the new employer files an H-1B transfer petition. You are not required to remain with a sponsoring employer, and any contractual provision restricting your ability to leave may violate federal law or California Labor Code provisions.

Protection against retaliation. Employers cannot retaliate against H-1B workers who report wage violations, unsafe working conditions, or other labor law violations. The Department of Labor’s Wage and Hour Division enforces LCA compliance, and workers can file complaints without jeopardizing their immigration status. USCIS has clarified that cooperation with labor enforcement agencies does not trigger adverse immigration consequences.

Common H-1B Situations

• H-1B lottery and cap registration. The annual lottery is the gateway to a new H-1B visa. With the new wage-weighted selection process in effect for FY 2027, understanding how prevailing wage levels affect selection odds is essential for both employers and prospective employees.
• Requests for Evidence (RFE). USCIS frequently issues RFEs questioning whether a position qualifies as a specialty occupation, whether the wage level is appropriate, or whether sufficient documentation has been submitted. Knowing what triggers RFEs and how to respond is critical.
• H-1B transfers and employer changes. Under portability provisions, H-1B workers can change employers without waiting for a new petition to be approved. The new employer must file a complete H-1B petition, including a new Labor Condition Application.
• H-1B extensions and renewals. H-1B status can be extended beyond the initial three-year period up to a six-year maximum, with further extensions available under AC21 for workers with pending green card applications.
• H-1B to green card pathway. The H-1B is a dual-intent visa, meaning workers can pursue permanent residence while on H-1B status. The employer-sponsored green card process typically moves through PERM labor certification, I-140 petition, and I-485 adjustment of status.
• H-1B denials and appeals. When a petition is denied, options include filing a motion to reopen or reconsider with USCIS, appealing to the Administrative Appeals Office, or refiling with stronger documentation. Understanding the specific basis for denial determines the best path forward.

The H-1B Legal Process Step by Step

1. Identify the specialty occupation. The employer determines that the position requires at least a bachelor’s degree in a specific field and that the prospective worker holds the required qualifications. USCIS evaluates this against the Department of Labor’s Occupational Outlook Handbook and O*NET data.
2. File the Labor Condition Application (LCA). The employer files Form ETA-9035 with the Department of Labor, attesting to paying the prevailing wage, providing proper working conditions, and not displacing U.S. workers. The LCA must be certified before the H-1B petition can be filed. Typical processing takes 7 business days.
3. Register for the H-1B cap lottery. For cap-subject positions, the employer submits an electronic registration during the annual registration period (typically March). Each registration costs $215 per beneficiary. Under the new weighted system, the assigned wage level determines the number of lottery entries.
4. File Form I-129 if selected. Selected employers file the complete H-1B petition, including the certified LCA, evidence of the specialty occupation, the worker’s qualifications, and proof of the employer’s ability to pay. Filing fees include the $460 base filing fee, $500 fraud prevention fee, $150 ACWIA training fee (or $750 for employers with 26+ employees), and optional $2,805 premium processing fee.
5. USCIS adjudication. USCIS reviews the petition and either approves it, issues a Request for Evidence, or denies it. Standard processing times range from 3 to 6 months. Premium processing guarantees an initial response within 15 business days.
6. Visa stamping or change of status. If the worker is abroad, they attend a consular interview for H-1B visa stamping. If already in the U.S. in valid status, the petition can request a change of status. Employment begins on the petition’s approved start date — typically October 1 for cap-subject cases.
7. Maintain status and plan ahead. Once in H-1B status, workers must remain employed in the approved position or file amendments for material changes. Before the six-year limit, the employer and worker should evaluate green card sponsorship, extension eligibility under AC21, or alternative immigration pathways.

Frequently Asked Questions