The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation,” which is generally defined as a position that requires at least a Bachelor’s degree or the equivalent. The applicant must prove eligibility for the H-1B category with documentation of sufficient educational credentials, licensure, and/or experience.

Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).

Numerical H-1B Visa Limitations

Each year, Congress limits the number of new H-1B nonimmigrants admitted to the U.S.; it is currently capped at 65,000. Each year, USCIS accepts petitions beginning April 1 until the cap is filled. Petitions are subject to random lottery selection for review and adjudication. If the application is approved, the H-1B visa would be valid for use beginning October 1. Upon approval, the applicant must attend a visa appointment at a U.S. Consulate or Embassy abroad (unless Canadian).

The first 20,000 petitions filed on behalf of beneficiaries with a U.S. Master’s degree or higher are exempt from the numerical cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization are not subject to this numerical cap.

Prerequisites to Filing an H-1B Petition

There are numerous obligations of an H-1B employer that must be considered:

  • The petitioner must be a viable entity that can pay the applicant the prevailing wage for someone in a similar position in the location where the work is primarily performed.
  • A Labor Condition Application (LCA, or ETA Form 9035) must be certified by the Department of Labor (DOL) before the petition is submitted to USCIS.
  • The employer must also document compliance with the LCA requirements in a “Public Access File” (PAF). The LCA and PAF contain standard attestations that the employer must make, as well as basic wage and location information about the proposed H-1B employment, including rate of pay, period of employment, and work location.

Dual Intent

An individual may apply for permanent residency (“green card”) and hold H-1B nonimmigrant status simultaneously.


Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may attend school. As of May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can apply for work authorization as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status.

Period of Stay

An H-1B nonimmigrant may be admitted for an initial period of up to three years. Extensions may be granted, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

The Berardi Difference

Each year, our team of immigration lawyers appear at the Peace Bridge port of entry in Buffalo, New York with Canadians from around the world who are applying for TN nonimmigrant status.  At Berardi Immigration Law, we won’t just draft your TN application.  Rather, we will create a strategic plan for your application which includes working with you and your employer to clearly understand your job duties, drafting a comprehensive TN petition and supporting evidence and appearing with you at the Peace Bridge to present your TN application to Customs and Border Protection.  Because our team is at the border at least 2-3 times per week, we are well-versed on government processing trends and expectations.  We enjoy a strong working relationship with Customs and Border Protection, that results in a very high approval rating for our clients.  Applying for a TN work permit is not a do-it-yourself project.  Don’t show up at the border with your job offer letter and resume.  Rather, contact the experienced immigration team at Berardi Immigration Law for a seamless TN approval.