Rolling With the Changes: H-1B Visa Rules are Rapidly Evolving

Employment-Based Immigration

H-1B Visa Rules are Rapidly Evolving - Herman Legal Group

The H-1B nonimmigrant visa is one of the most sought-after employment-based visas for foreign professionals who wish to work in the United States. As U.S. immigration laws continue to evolve, the Department of Homeland Security (DHS) and past administrations, including Trump-era policies, have introduced stricter rules and frequent changes that impact applicants and employers alike. Understanding these rules is critical to successfully navigating the process.

Specialty Occupation Requirement

Applicants must prove the offered position qualifies as a specialty occupation under U.S. immigration law. This means the role requires theoretical and practical application of specialized knowledge, often supported by at least a bachelor’s degree or equivalent work experience. USCIS requires clear documentation to determine eligibility.

Employer-Employee Relationship

The H-1B visa does not support independent contractors. Employers must demonstrate the right to control when, where, and how the employee performs their job. USCIS carefully reviews these relationships to ensure compliance.

Prevailing Wage and Labor Condition Application (LCA)

Employers must pay H-1B workers at least the prevailing wage, ensuring fairness for U.S. workers. To meet this requirement, employers must file a Labor Condition Application (LCA) with the Department of Labor (DOL). The LCA confirms:

Foreign workers will not harm wages or conditions of U.S. workers
The offered wage meets or exceeds market standards
Workers are notified of the LCA filing
The employer is not under a strike or lockout

Violating these requirements can result in heavy fines and penalties.

H-1B Filing Fees

The cost of filing an H-1B petition can range between $1,315 and $8,005 depending on employer size and circumstances. Key fees include:

Registration Fee: $10
Base Filing Fee: $555
ACWIA Fee: $750–$1,500
Fraud Prevention Fee: $500
Additional Fee for large employers: $4,000
Premium Processing: $1,440

Employers must pay all required fees — costs cannot be passed on to employees.

H-1B Application Process

Employer extends a job offer and employee accepts.
Employer files LCA with the DOL (approx. 7 days for approval).
Employer files H-1B petition with USCIS, including required documentation and fees.
Petitions enter the H-1B lottery. Only selected applications proceed to review
USCIS may approve, deny, or request additional evidence (RFE).
Approved applicants abroad must attend a consular interview before entering the U.S

Recent H-1B Visa Changes

The H-1B program continues to face political scrutiny and evolving regulations. Key recent changes include:
Shortened duration of stay in some cases
Executive orders temporarily suspending new visas (COVID-19 era)
Stricter definition of specialty occupation
Closer review of employer-employee relationships
Increased scrutiny of entry-level positions
Issuance of NTAs (Notice to Appear) for denied extensions
Proposed elimination of the lottery in favor of a wage-based system

Frequently Asked Questions (FAQs)

What is the H-1B Cap?

Congress caps H-1B visas at 65,000 annually, with an additional 20,000 visas for advanced degree holders. Extensions are exempt from this cap.

How long can I stay on H-1B?

Initial approval is up to three years, with a maximum of six years including extensions. Shorter approvals are possible depending on USCIS discretion.