An individual who is a citizen of another country that wants to enter the U.S. for an extended period will generally need to obtain some type of visa. This can be a non-immigrant visa allowing an individual to temporarily stay in the U.S., mostly for work-related purposes. It can also be an immigrant visa that grants an individual permanent residence in the country.
If you are a citizen of another country that wishes to live and work in the U.S. for a limited period of time, then you will need to apply for a temporary worker visa. There are currently eleven different categories for temporary worker visas. These categories are:
- H-1B Visa: Specialty occupations
- H-1B1 Visa: Also applies to specialty occupations, but specifically for qualifying Free Trade Agreement professionals from Chile and Singapore
- H-2A Visa: Temporary agricultural workers
- H-2B Visa: Temporary non-agricultural workers
- H-3 Visa: Individuals not able to get training in their own country or individuals in a special education training program
- L: Intracompany transferee where the person worked for a different branch of the company located outside the U.S. for at least one year
- O: Individual with extraordinary ability or achievement in various fields like the arts, athletics, or television
- P-1: Athletes or members of an entertainment group that are internationally recognized
- P-2: Artists or entertainers in a reciprocal exchange program
- P-3: Artists or entertainers performing something culturally unique or traditional
- Q-1: Individuals that are in an international cultural exchange program
Each of these visas has their own unique qualifications and application process. The first category listed for specialty occupations is a broader visa that many individuals seek when looking to temporarily live and work in the United States. Some examples of specialty fields for H-1B visas are science, medicine, architecture, and law.
However, so many more fields and occupations can apply. The individual just needs to possess technical and specialized skills at a higher level. This visa also has sub-categories that allow distinguished fashion models, U.S. Department of Defense project workers, and other government research development workers.
Who is Eligible for an H-1B Visa?
In order to be eligible for an H-1B visa, the following requirements need to be met:
- The individual needs to be a citizen of another country;
- A private U.S. employer or the government must hire the individual to work under that company’s supervision and control;
- The work must be for a qualified specialty occupation;
- The job needs to require a bachelor’s degree or higher degree and the individual must possess one or more of these degrees or an equivalent;
- The nature and specific duties of the job must be specialized and require complex knowledge;
- The job must be in a related field to the individual’s skill set; and
- The agreed pay needs to be at minimum the actual or prevailing wage that the employer would pay a U.S. citizen.
If all of these factors are present, then the application process can begin. However, keep in mind that the job cannot adversely affect wages or displace workers that are American citizens. This simply means that an employer cannot extend a temporary job to a U.S. worker and then lower the wage or fire a current employee who is a U.S. citizen based on hiring the foreign temporary worker.
What is the Application Process for an H-1B Visa?
There are three key steps in the process of obtaining an H-1B visa. The petition procedure involves both the U.S. employer and foreign temporary worker. The following needs to be completed:
- The U.S. employer acts as a sponsor for the potential temporary worker and applies for certification of a Labor Condition Application from the Department of Labor. This essentially means that the employer is attesting that it will comply with certain labor requirements. Failure to complete the step can result in the employer having to pay fines or being barred from sponsoring future immigrant and non-immigrant petitions.
- The U.S. employer needs to file Form I-129 with the U.S. Citizenship and Immigration Services (USCIS). This form is the official Petition for a Nonimmigrant Worker. As of January 17, 2025, employers must use the revised Form I-129 (edition date 01/17/25), which includes mandatory consent for USCIS site visits and enhanced documentation requirements.
- The prospective foreign worker applies for their H-1B visa into the country with the U.S. Department of State. This step can be completed at a U.S. embassy or consulate located in the individual’s country of nationality or legal residence. This last step can only happen after the Form I-129 petition is approved.
After all of this is completed, the worker still needs to apply for admission into the country via H-1B classification. This application needs to be submitted to the U.S. Customs and Border Protection. Once the person begins work, they can stay for up to three years. An extension can be granted but this generally cannot go past six years total. However, workers may be eligible for extensions beyond six years if they have a pending green card application or an approved immigrant petition.
What Happens When the Temporary Employment Ends?
If the employer terminates the H-1B visa worker before the end of the authorized working period, then the employer will have to pay reasonable return transportation costs. However, the employer will not have to pay these costs if the worker voluntarily quits. For example, say you are a citizen of Poland that was granted a visa with H-1B status to stay and work for a U.S. employer for a period of 18 months. If the employer fires you on month 13, then they will need to pay your airfare and any other reasonable travel costs to return to Poland. However, if you quit on month 13 then you will have to pay for your travel fees to return back home.
Regardless, when the working period ends the foreign employee must notify the USCIS and leave the country, unless the visa is extended.
What are Some Other Important Things to Know About an H-1B Visa?
One common question about the H-1B visa is the length of time it will take to get this type of visa. It is important to know that there is no set time frame. Various factors will affect the process like how busy the U.S. agencies are and whether further investigation into the person’s background is needed. However, the time frame typically ranges from 2-12 months, with standard processing taking 3-6 months for straightforward cases and potentially longer for complex petitions or those receiving Requests for Evidence. As such, it is important to be proactive and get everything submitted and paid timely – especially if there is a quick need for the worker to begin. There also may be a premium processing option available to expedite the process. There is a premium processing option available for an additional fee of $2,805, which guarantees a decision within 15 business days.
Another important thing about H-1B visas is that there is an annual cap. Only 65,000 new visas can be issued each fiscal year. An additional 20,000 visas are available for individuals who have earned a master’s degree or higher from a U.S. institution, for a total of 85,000 cap-subject visas annually. While there are some exemptions, most people will be subject to the annual cap so it is crucial to get the process completed in a timely fashion.
As of November 2025, significant policy changes have been implemented that substantially affect the H-1B visa program:
- New Application Fee (Effective September 21, 2025): The Trump administration implemented a one-time $100,000 fee for new H-1B petitions for beneficiaries outside the U.S. without valid H-1B visas. This fee is in addition to all standard USCIS fees and applies to petitions filed on or after September 21, 2025. The fee does NOT apply to extensions, amendments with the same employer, or petitions filed before this date. National interest exemptions may be available on a case-by-case basis, particularly for medical professionals.
- Proposed Lottery Changes: In September 2025, USCIS proposed a new weighted lottery system based on wage levels that would prioritize higher-paid positions. If finalized, this system would apply to the March 2026 registration period for fiscal year 2027.
- Enhanced Compliance Requirements: As of January 17, 2025, participation in USCIS site visits became mandatory. Employers must consent to unannounced workplace inspections, and refusal can result in petition denial or revocation.
- Visa Stamping Restrictions: As of September 2025, the Department of State eliminated most “dropbox” interview waivers and third-country visa stamping options. Most H-1B visa renewals now require in-person interviews at U.S. consulates in the applicant’s country of nationality or legal residence.
Birthright Citizenship Concerns for H-1B Families
On January 20, 2025, the President signed Executive Order 14160 that would have denied automatic U.S. citizenship to children born in the United States to parents on temporary visas, including H-1B visa holders. However, this executive order has been completely blocked by federal courts and has never taken effect. As of November 2025, all children born to H-1B visa holders in the U.S. continue to be U.S. citizens at birth under the 14th Amendment. The order remains subject to ongoing litigation, and families should consult with immigration attorneys about potential future changes.
Broader Immigration Policy Context
The H-1B visa program changes are part of a broader immigration policy shift. The administration has also implemented historic restrictions on refugee admissions (reducing the cap to 7,500 for fiscal year 2026, the lowest level since 1980) and terminated humanitarian parole programs. These changes reflect a comprehensive approach to reducing both employment-based and humanitarian immigration.
This area of law is highly subject to change with presidential administrations and ongoing litigation. H-1B visa policies, fees, processing procedures, and related immigration matters may be modified through executive action, regulatory changes, or court decisions. Prospective applicants should verify current requirements with USCIS.gov or consult with a qualified immigration attorney before beginning the application process.
Do I Need to Hire a Lawyer to Help Me With the H-1B Visa Process?
Since there is a cap on H-1B visas and they are in high demand, an immigration lawyer could really help you ensure the process goes smoothly and have a better chance of getting a visa for the year you desire to work temporarily in the country. The process has become increasingly complicated with multiple steps, enhanced compliance requirements, substantial fee increases, and frequent policy changes, so a lawyer can help make sure everything is done correctly. Given the new $100,000 application fee, mandatory site visit requirements, proposed lottery changes, and heightened enforcement, professional legal guidance is more important than ever. Having this extra layer of protection could be the reason you are qualified in time to get a visa before the annual H-1B visa quota is reached.
