The H1B visa is one of the most widely used US work visa routes for highly skilled foreign professionals. It allows employers in the United States to sponsor overseas workers in specialist roles where there is a shortage of domestic talent. For UK employers with US operations, or for UK professionals considering employment in the United States, understanding the H1B process is critical to ensuring compliance and maximising the chances of a successful application.
What this article is about
This article provides a comprehensive guide to the H1B visa. It explains the visa’s purpose and eligibility, the application process, employer compliance duties, and the rules on extensions and transfers. It also addresses the alternatives available when an H1B visa may not be suitable. The guidance is designed to assist both employers who sponsor H1B workers and individuals seeking to work in the United States under this route.
Section A: Overview of the H1B Visa
The H1B visa is a cornerstone of the United States’ temporary worker system, aimed at attracting highly skilled professionals to fill roles where domestic recruitment cannot meet demand. It plays a vital role in supporting the US labour market by allowing employers to source international talent in areas such as technology, finance, healthcare, engineering, and research. For UK employers or professionals considering opportunities in the US, it is important to understand the scope and function of this visa route.
1. What is the H1B Visa?
The H1B visa is a non‑immigrant category for foreign nationals employed in a “specialty occupation,” meaning a role that requires the theoretical and practical application of a body of highly specialised knowledge and the attainment of at least a bachelor’s degree or its equivalent in the specific field. The visa is employer‑led: a US company petitions for the worker, who becomes the beneficiary and may work only in the petitioned role and location(s) authorised.
Because annual demand outstrips supply, most cap‑subject H1B petitions are allocated by lottery. While detailed cap mechanics are covered later, at a high level the statutory cap operates alongside exemptions for certain employers (for example, qualifying higher education institutions and non‑profit research organisations) and an advanced‑degree carve‑out.
2. Eligible Occupations
Eligible roles are those that qualify as a specialty occupation. In practice this commonly includes positions in:
- Information technology and software engineering
- Finance, accounting, and quantitative analysis
- Healthcare, biotechnology, and medical research
- Architecture and engineering disciplines
- University‑level teaching and research
Whether a role qualifies turns on the job’s minimum entry requirements and industry norms. The employer must be able to show that the position typically requires at least a bachelor’s degree in a specific specialty (not merely “any degree”), and that the offered duties align with that specialty. Title alone is not determinative; the day‑to‑day duties and their complexity are central.
3. Who Can Apply?
Employers: Only US‑based employers may sponsor H1B workers. They must have a bona fide job offer, the ability to pay the required wage, and they must comply with pre‑filing attestations in a certified Labour Condition Application (LCA), including paying at least the prevailing wage, providing appropriate working conditions, and giving required notice to workers at the worksite (including electronic posting where applicable).
Applicants (prospective employees): The worker must hold at least a US bachelor’s degree (or foreign equivalent) in the field directly related to the role. Where no single degree exists, a recognised combination of education, specialised training, and progressively responsible experience can be evaluated as “equivalent,” provided it reaches the bachelor’s level in the relevant specialty. The individual must also meet any licensure or professional prerequisites specific to the occupation or state.
H1B status is tied to the sponsoring employer and the specific terms in the petition. Any material change to the role, location, or employer generally requires further action (for example, an amended or new petition) to maintain compliance.
Note: Separate treaty categories (H‑1B1 for Chile/Singapore nationals) and cap‑exempt scenarios exist; these affect strategy and availability and are addressed later in the process and alternatives sections.
Section A Summary: The H1B visa enables US employers to recruit overseas professionals into specialty occupations that genuinely require degree‑level knowledge tied to the role’s duties. Eligibility is dual: employers must meet LCA and sponsorship attestations, and workers must meet the degree or recognised equivalent standard for the specific specialty. Properly defining the role and evidencing its specialty nature are foundational to a compliant H1B strategy.
Section B: H1B Application Process
The H1B application process is highly regulated and involves several mandatory steps for both the sponsoring employer and the applicant. The process begins with the employer’s petition and ends with the worker’s entry into the United States. Employers must take particular care to meet each procedural and evidential requirement, as errors or omissions can result in refusal or delays.
1. Employer Sponsorship
The foundation of the H1B process is employer sponsorship. Only a US employer may petition for an H1B worker. The employer must:
- Identify a qualifying role that requires specialist skills
- Offer the position to a foreign professional who meets the academic or professional requirements
- Commit to paying at least the prevailing wage for the occupation and region, as set by the US Department of Labor
The petitioning employer files with United States Citizenship and Immigration Services (USCIS), listing the worker as the beneficiary. The H1B is not a self-sponsored visa — workers cannot apply independently.
2. Labour Condition Application (LCA)
Before filing the petition, the employer must obtain certification of a Labour Condition Application (LCA) from the US Department of Labor. The LCA serves several purposes:
- Confirming the employer will pay the H1B worker the prevailing wage or higher
- Demonstrating that employing the foreign worker will not negatively affect the wages or working conditions of US workers
- Ensuring notice of the filing is provided to existing employees, including through physical posting at the worksite or electronic notification
The LCA must be certified before the employer proceeds with the H1B petition to USCIS. Employers are also prohibited from “benching” H1B workers without pay during non-productive periods caused by the employer (for example, lack of assigned work).
3. Petition with USCIS
With a certified LCA, the employer submits Form I-129, Petition for a Non-immigrant Worker, to USCIS. The petition must include:
- Evidence of the worker’s qualifications, such as degree certificates or credential evaluations
- Details of the role offered, demonstrating that it qualifies as a specialty occupation
- Proof of the employer’s business and ability to pay the required wage
Because demand for H1B visas far exceeds the annual supply, petitions are subject to a lottery system. Each year, 65,000 H1B visas are available under the regular cap, with 20,000 reserved for applicants holding advanced US degrees. In addition, 6,800 visas are set aside under H-1B1 for nationals of Chile and Singapore, reducing the general cap. Cap-exempt employers, such as universities and certain non-profits, are not subject to the lottery.
4. Visa Stamping & Entry to the US
If USCIS approves the petition and the application is selected, the worker must then apply for the visa at a US consulate or embassy, such as the US Embassy in London for UK applicants. This stage, known as visa stamping, requires the applicant to attend an interview and present supporting documentation, including the USCIS approval notice.
Once the visa is endorsed in the passport, the applicant can travel to the United States to begin employment with the sponsoring employer. Admission at the port of entry is granted by a Customs and Border Protection officer, who issues an I-94 record confirming lawful H1B status.
Section B Summary: The H1B application process involves multiple stages, beginning with employer sponsorship and ending with the applicant’s lawful entry into the United States. Key steps include obtaining a certified LCA, filing the petition with USCIS, and securing visa stamping through a consular interview. The process is highly competitive due to the annual cap and lottery system, requiring careful preparation and compliance by both employer and applicant.
Section C: Compliance & Employer Duties
Securing approval for an H1B petition is only the beginning of an employer’s responsibilities. US immigration law places strict compliance obligations on H1B sponsors to protect both foreign workers and the domestic labour market. Employers must be aware of their ongoing duties, as breaches can lead to severe penalties, including fines, debarment from the H1B programme, and reputational damage.
1. Wage Requirements
One of the central compliance duties is to ensure that the H1B worker is paid at least the “prevailing wage” for the occupation and location. The prevailing wage is determined by the US Department of Labor and reflects the average compensation paid to similarly employed US workers in the region.
Employers are prohibited from underpaying foreign workers or using the H1B programme to reduce labour costs. Wages must also be paid in line with the terms of employment stated in the petition and the certified LCA. Employers must pay workers during non-productive periods caused by the employer (“benching” without pay is unlawful).
2. Record-Keeping & Public Access Files
Employers must maintain detailed records to demonstrate compliance. This includes creating and retaining a Public Access File (PAF) for each H1B worker, which must be available for inspection. The PAF should include:
- A copy of the certified Labour Condition Application
- Documentation of the wage rate paid to the H1B worker
- Evidence of the prevailing wage determination
- Proof that notice of the LCA was provided to employees
In addition, employers are required to keep payroll records and other employment documentation that can be reviewed during an audit. Employers must also ensure LCA posting requirements are met — either at the worksite or electronically — so US workers are aware of the hiring.
3. Audits & Investigations
The US Department of Labor and USCIS have authority to conduct audits and investigations of H1B employers. Audits may be random or triggered by complaints. During an audit, authorities will review PAFs, payroll records, and other documents to verify compliance.
If an employer is found to have violated H1B rules — for example, by underpaying wages, misrepresenting the role, or failing to keep accurate records — penalties can include:
- Monetary fines
- Payment of back wages to affected workers
- Revocation of H1B petitions
- Debarment from the H1B programme and other immigration benefits
Section C Summary: Compliance under the H1B programme centres on protecting the rights of foreign workers while safeguarding US labour standards. Employers must pay the prevailing wage, maintain accurate records including a Public Access File, meet LCA posting duties, and be prepared for potential audits. Failure to meet these duties can result in significant penalties, making compliance a crucial ongoing responsibility for all H1B sponsors.
Section D: Extensions, Transfers & Alternatives
Once an H1B visa is granted, both employers and workers should be aware of the rules governing its duration, renewal, and the possibilities for changing employers. For those who are unsuccessful in securing an H1B or whose circumstances change, alternative visa routes may also be available. Careful planning is essential to ensure continued lawful status in the United States.
1. H1B Duration & Extensions
The H1B visa is initially granted for up to three years. It can be extended to a maximum of six years, typically in increments of one or three years depending on the circumstances.
In some cases, extensions beyond the six-year limit are possible under the American Competitiveness in the Twenty-First Century Act (AC21). For example, if a worker has a pending or approved Green Card application under the employment-based categories, one-year or three-year extensions may be granted. Additionally, periods spent outside the United States during H1B status can often be “recaptured,” extending eligibility further.
2. H1B Transfers
H1B status is tied to the sponsoring employer, but the rules allow for transfers. If an H1B worker wishes to change employers, the new employer must file a fresh H1B petition with USCIS. Under the “portability rule” in AC21, the worker may begin employment with the new employer as soon as USCIS receives the properly filed petition, provided the worker is in valid H1B status at the time of filing. This means workers do not have to wait for full petition approval before starting work.
Transfers are not subject to the annual cap if the worker already holds H1B status, which gives greater flexibility to change jobs without going through the lottery process again.
3. Alternatives to H1B
Given the high demand and annual cap restrictions, not every applicant or employer will succeed in obtaining an H1B visa. Alternative US work visa options include:
- L-1 visa: For intra-company transfers of managers, executives, or specialists from an overseas office to a US branch.
- O-1 visa: For individuals with extraordinary ability in sciences, arts, education, business, or athletics.
- TN visa: Available to Canadian and Mexican professionals under the United States-Mexico-Canada Agreement (USMCA).
- E-2 visa: For investors or employees of companies making a substantial investment in the US.
Section D Summary: The H1B visa offers flexibility through extensions and transfers, allowing workers to remain in the United States for up to six years and in some cases longer under AC21 provisions. Transfers enable continued employment without interruption, while alternative visa categories provide other options where H1B sponsorship is not viable. Employers and workers should consider these pathways as part of a long-term immigration strategy.
FAQs
How long does it take to process an H1B visa?
Processing times vary depending on the stage. The lottery selection is usually run in March each year, with petition adjudications taking several months. Premium Processing is available for an additional fee, guaranteeing a USCIS decision within 15 calendar days. Consular processing and visa stamping can add several more weeks, so employers should plan well in advance.
What is the annual H1B cap?
Each year, there are 65,000 H1B visas available under the regular cap, with an additional 20,000 reserved for applicants holding a master’s degree or higher from a US institution. Of the 65,000 general cap, 6,800 are reserved for nationals of Chile and Singapore under the H-1B1 programme. Certain employers, such as universities and non-profit research organisations, may be exempt from the cap altogether.
Can dependants join H1B visa holders in the US?
Yes. Spouses and unmarried children under 21 can accompany H1B holders under the H-4 dependant visa. H-4 visa holders may reside in the US for the duration of the H1B’s validity. In some cases, H-4 spouses are eligible to apply for employment authorisation if the H1B principal has reached certain stages of the Green Card process.
What happens if an H1B worker loses their job?
If employment ends, the H1B worker has a grace period of up to 60 days (or until their authorised validity period ends, whichever is shorter) to find a new sponsor, change to another visa category, or leave the US. Failing to take action within this timeframe results in loss of lawful status.
Can H1B holders apply for a Green Card?
Yes. Many H1B holders progress to permanent residence through employment-based Green Card sponsorship. In these cases, the employer usually begins the process by filing a PERM labour certification, followed by an immigrant petition. The H1B visa is considered “dual intent,” meaning holders can lawfully pursue permanent residence without jeopardising their temporary status.
Conclusion
The H1B visa remains one of the most significant routes for bringing highly skilled professionals to the United States. For employers, it provides access to international talent in sectors where domestic supply is limited. For workers, it offers the opportunity to gain valuable career experience in the US and, in many cases, a pathway to permanent residence.
However, the H1B route is tightly regulated. Employers must comply with strict obligations on wages, record-keeping, LCA posting, and transparency, while applicants must demonstrate that they meet the educational and professional requirements for a specialty occupation. The annual cap and lottery system add a layer of complexity, making preparation and timing crucial for success.
By understanding the eligibility rules, application stages, and ongoing compliance duties, both employers and applicants can approach the H1B process with greater confidence. Where an H1B is not possible, viable alternatives exist that may better suit business or personal circumstances. Strategic planning is therefore essential to ensure continuity of operations and to make the most of the opportunities this visa route offers.
Glossary
| Term | Definition |
|---|---|
| H1B Visa | A US non-immigrant visa allowing skilled foreign professionals to work in specialty occupations with a sponsoring employer. |
| LCA (Labour Condition Application) | A certification from the US Department of Labor confirming wage and working condition compliance for an H1B worker. |
| USCIS | United States Citizenship and Immigration Services, the federal agency responsible for adjudicating H1B petitions. |
| Form I-129 | The petition form used by employers to request permission to employ a foreign national in the US under H1B status. |
| Specialty Occupation | A role requiring the application of specialised knowledge and at least a bachelor’s degree or recognised equivalent. |
| Public Access File (PAF) | A file employers must maintain for each H1B worker, containing key documents such as the LCA and wage evidence, available for inspection. |
| Premium Processing | An optional USCIS service allowing employers to receive a decision on the H1B petition within 15 calendar days for an additional fee. |
| Dual Intent | A feature of the H1B visa that allows holders to apply for permanent residence without affecting their temporary non-immigrant status. |
Useful Links
| Resource | Link |
|---|---|
| USCIS H1B Visa Information | USCIS H1B Guidance |
| US Department of Labor LCA | DOL LCA Information |
| US Embassy London – Work Visas | US Embassy London Work Visas |
| Form I-129 Instructions | USCIS Form I-129 |
| NNU Immigration H1B Guide | NNU Immigration H1B Visa |
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
