H-1B Basics: Specialty Occupation, Employer Duties, and Pitfalls

The H-1B visa remains one of the most sought-after work visas for professionals. Understanding the requirements and common pitfalls can mean the difference between approval and denial.

What Is a Specialty Occupation?

A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and at least a bachelor's degree in the specific specialty.

Employer Obligations

• Pay the required wage (prevailing or actual)
• Maintain a public access file
• Provide working conditions as stated in the LCA
• Notify USCIS of material changes

Common Pitfalls

Gap in Status

Any gap between H-1B periods can affect your status and future applications.

Material Changes

Changes in job duties, location, or ownership may require amended petitions.

Layoffs and Terminations

Employers must offer return transportation and notify USCIS of early termination.

The "Cap-Gap" Extension

For F-1 students on OPT whose work authorization ends before their H-1B starts on October 1st, the "Cap-Gap" rule is a lifesaver. If your employer files a timely H-1B petition, your F-1 status and OPT work authorization are automatically extended until September 30th.

This prevents a gap in employment eligibility. However, you must ask your DSO for an updated I-20 reflecting the Cap-Gap extension to prove your legal status to HR and government agencies during this period.

Beyond the 6-Year Limit

H-1B status is generally limited to 6 years. However, AC21 legislation allows for extensions beyond this limit in two main scenarios:

1. 3-Year Extensions: If you have an approved I-140 petition but your priority date is not current (due to backlogs for countries like India/China).
2. 1-Year Extensions: If your PERM labor certification or I-140 has been pending for more than 365 days.

This allows professionals to remain in the US for decades while waiting for their green cards.

Layoffs and the 60-Day Grace Period

In the volatile tech sector, layoffs are a major concern. If you are terminated, regulations provide a discretionary 60-day grace period (or until your I-94 expires, whichever is shorter). During these 60 days, you cannot work, but you can remain in the US to find a new employer to file a transfer petition or to change status (e.g., to B-2 visitor or F-1 student). If 60 days pass without a filing, you are out of status.

The LCA: The Backbone of the H-1B

Before filing the H-1B, your employer must file a Labor Condition Application (LCA) with the Department of Labor. This certifies they will pay you the "Prevailing Wage" for your specific SOC Code (Standard Occupational Classification) and geographic level.

The Wage Level Trap: Entry-level positions are "Level 1" wages. USCIS increasingly challenges Level 1 wages for complex "Specialty Occupations," arguing that if a job is truly complex enough to require a degree, it shouldn't be paid at the bottom tier. Strategic selection of the SOC code and Wage Level is vital to avoiding RFEs.

H-1B Amendments: When to File?

Under the *Simeio Solutions* ruling, an H-1B worker cannot simply move to a new city without action. If you move to a new "MSA" (Metropolitan Statistical Area), your employer usually must file a new LCA and an *Amended H-1B Petition* BEFORE you start working there. Moving from DC to San Francisco without an amendment is a violation of status.

B-1/B-2 "Bridge" Strategy for Layoffs

Since 2023, USCIS has clarified that laid-off H-1B workers in their 60-day grace period can file for a Change of Status to B-2 (Visitor) to buy more time to interview. If a new employer is found while the B-2 is pending, they can file a new H-1B petition, and the worker can often "premium process" back to H-1B status without leaving the country. This strategy essentially extends the 60-day grace period to 6 months.

Can my spouse work?

H-4 spouses can only work if the primary H-1B holder has an approved I-140 petition. If so, the spouse can apply for an H-4 EAD. Otherwise, H-4 holders are not authorized to work.

What happens if my H-1B lottery entry is not selected?

If you are not selected, you cannot file a petition for that fiscal year. You may look for 'Cap-Exempt' employers (universities, non-profits related to universities), enroll in a new degree program (Day-1 CPT), or return home and try again next year.

Disclaimer: This article is for general information only and is not legal advice. Every case is fact-specific. For legal advice, consult a licensed attorney.