H-1B visa guide — electronic registration, lottery odds, cap-exempt employers, RFE response strategies, and the path from H-1B to green card.
Reviewed by Ekaterina Fitenko, Esq. — Florida Bar #1064536. With 20+ years of experience in the legal field (Florida Bar licensed since 2025), she advises Florida employers and professionals on H-1B petitions, cap-exempt options and the path to permanent residence, in English and Russian.
The H-1B is a nonimmigrant work visa that allows U.S. employers to hire foreign workers in "specialty occupations" — positions that require at least a bachelor's degree or its equivalent in a specific field of study. It is the most widely used temporary work visa in the United States and serves as a critical pathway for professionals in technology, engineering, healthcare, finance, architecture, and numerous other fields.
The H-1B visa is governed by Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act. The initial period of stay is up to three years, extendable to a maximum of six years. Under certain circumstances — particularly when a green card process is underway — extensions beyond six years are possible under the American Competitiveness in the Twenty-First Century Act (AC21).
Each fiscal year, USCIS imposes a cap of 65,000 regular H-1B visas, plus an additional 20,000 visas for beneficiaries who hold a U.S. master's degree or higher (the "master's cap"). Because demand far exceeds supply — in recent years, USCIS has received over 400,000 registrations for these 85,000 slots — a lottery system is used to select which petitions will be accepted for processing.
The registration process works as follows:
Not all H-1B petitions are subject to the annual cap. The following employers can file H-1B petitions at any time during the year without going through the lottery:
If you are employed by a cap-exempt employer and later transfer to a cap-subject employer, you will need to go through the lottery at that point. However, if you have already been counted against the cap in a prior H-1B approval, you are generally exempt from the cap for future H-1B petitions (a concept known as "cap portability").
To qualify as a specialty occupation, the position must meet at least one of the following criteria:
The beneficiary must also possess the required degree or its equivalent. Foreign degrees are evaluated through credential evaluation services, and in some cases, a combination of education and work experience can be used to establish the equivalent of a U.S. bachelor's degree (typically three years of progressive experience for each year of missing education).
Before filing the H-1B petition, the employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL). The LCA attests that the employer will pay the H-1B worker at least the prevailing wage for the occupation in the area of intended employment, or the actual wage paid to other employees in the same position, whichever is higher.
The prevailing wage is determined by the DOL's Online Wage Library and is classified into four levels:
Wage level selection has become an area of increased scrutiny. Filing at Level 1 for positions that clearly require more experience may result in an RFE or denial.
The H-1B is often described as a "dual intent" visa, meaning the holder can maintain H-1B status while simultaneously pursuing permanent residence (a green card). The typical path involves:
One of the most valuable features of H-1B status is the ability to extend beyond the normal six-year maximum if the PERM or I-140 has been pending or approved for a specified period (under AC21 Sections 104(c) and 106(a)). This allows H-1B holders to maintain work authorization during lengthy green card backlogs, which can span many years for nationals of high-demand countries like India and China.
Given the competitive lottery, applicants and employers should consider several strategies:
The H-1B remains the cornerstone of professional immigration to the United States, but navigating the lottery, compliance requirements, and green card transition demands careful planning. Starting early and working with experienced counsel can make the difference between a successful outcome and years of uncertainty.
There is no Florida version of the H-1B — the programme is federal and the rules are identical in Miami and in Minneapolis. What differs is the employer landscape, and in Florida that landscape is misread in two directions at once.
Small employers assume they cannot sponsor. Florida's economy is dominated by small and mid-sized businesses, and the belief that H-1B is only for large technology companies is widespread and wrong. There is no minimum company size, no revenue threshold and no requirement to have sponsored before. What a small employer does need is a genuine specialty-occupation role, the ability to pay the prevailing wage, and the willingness to sign a labor condition application and keep a public access file. Many Florida businesses meet all three and never ask.
Candidates overlook cap-exempt employers. This is the more expensive mistake. Institutions of higher education, nonprofit organisations related to or affiliated with them, and nonprofit or government research organisations are exempt from the annual cap — meaning no lottery, and petitions can be filed at any time of year rather than in a single March window.
Florida has an unusually deep bench of such employers: the state university system and its affiliated research institutes and teaching hospitals, private universities, and a substantial network of nonprofit medical and biomedical research organisations across Tampa Bay, Gainesville, Miami and Jacksonville. For a researcher, clinician, academic or specialised technical professional, a cap-exempt position is not a consolation prize — it is a route that avoids the lottery entirely.
A structure worth knowing: concurrent H-1B employment. A person holding cap-exempt H-1B status with a qualifying institution may in some circumstances also work part-time for a cap-subject employer without going through the lottery, provided the cap-exempt employment continues. It is fact-specific and needs to be set up correctly, but it solves a problem that otherwise looks unsolvable.
Registration is a lottery, and in recent years the great majority of registrations have not been selected. Treating non-selection as the end of the plan is the most common strategic error, because several alternatives exist and most of them have deadlines.
For students, the calendar matters more than the choice: F-1 status and any work authorisation run on their own dates, and the alternatives have to be in motion before those dates pass, not after.
Employer side. A job description written for recruiting rather than for the specialty-occupation standard, so the degree requirement is not clearly tied to the duties. Offering below the prevailing wage for the level and location. Neglecting the public access file, which is a compliance obligation and not paperwork. Amending nothing when the role, worksite or terms change materially — a change that requires an amended petition and does not get one is a status problem for the employee.
Employee side. Assuming the six-year limit is fixed. It is not, where a labor certification or immigrant petition has been pending or approved long enough, and the sequencing of that filing determines whether extensions beyond six years are available at all. Waiting until year five to think about the green card is the most common version of this.
Both sides. Treating approval as the end of the matter. H-1B status is tied to the specific employer, role and terms in the petition, and it has to be maintained as those things change.
The H-1B is a temporary work visa for positions that qualify as specialty occupations, generally requiring at least a bachelor's degree or its equivalent in a specific field. A U.S. employer sponsors the worker and must file a Labor Condition Application and Form I-129. Common fields include technology, engineering, finance, and healthcare.
Most H-1B petitions are subject to an annual numerical cap, and when registrations exceed the cap USCIS uses a random selection process, commonly called the lottery, to decide which registrations may move forward. Employers first submit an electronic registration during a set window each spring. Certain employers, such as some universities and nonprofit research organizations, may be cap-exempt.
A Request for Evidence (RFE) means USCIS needs more information before deciding, often about whether the role is truly a specialty occupation or whether your degree matches the position. You generally respond within the deadline stated in the notice with additional documentation and legal argument. A well-organized, timely response is important, since missing the deadline can lead to denial.
H-1B status is generally granted for up to three years and can typically be extended to a maximum of six years. Extensions beyond six years may be possible in certain situations tied to a pending green card process. Your spouse and children may qualify for H-4 dependent status, and some H-4 spouses may be eligible for work authorization.
Yes. The H-1B is a dual-intent visa, which means holding it does not prevent you from pursuing permanent residence at the same time. Many H-1B workers move toward a green card through employer sponsorship in the EB-2 or EB-3 categories. The timeline depends on the category and your country of birth.
Fitenko Law PLLC, 11555 Heron Bay Blvd, Suite 227, Coral Springs, FL 33076 (main office); 600 Three Islands Blvd, Hallandale Beach, FL 33009. Phone: (305) 315-3425. Email: fitenkolaw@gmail.com