An H-1B visa comes in stages: the employer registers the worker in the USCIS electronic lottery and, once selected and holding a DOL-certified Labor Condition Application, files Form I-129. After approval, the worker applies for a visa at a consulate or, if lawfully in the U.S., changes status.
An offer from a Manhattan firm, an engineering degree from a European university or a master’s from a New York school: that is how most H-1B conversations begin. It quickly becomes clear, though, that success depends on details the candidate often does not control, such as the job description, the wage level, registration deadlines and the documents the employer files.
This guide walks through the process from the first offer to the consular decision. It covers who files what, what drives the cost, what changed in 2025 and 2026, and where employers and workers most often stumble. It is not a substitute for individual advice, but it will help you prepare for a conversation with John Nicelli & Associates.
Does your position qualify as a specialty occupation?
H-1B is a nonimmigrant visa for specialty occupations, meaning jobs that require the theoretical and practical application of a body of highly specialized knowledge. Fields that have traditionally qualified include computer programming and software development, engineering, architecture, mathematics, law, medicine and research, education, business management and journalism. The field alone does not decide the case. What matters is what the specific position requires.
The worker should hold at least a bachelor’s degree in a related field from an accredited U.S. institution, or a foreign equivalent. Foreign degrees usually need a credential evaluation. In some cases, work experience can substitute for education, generally counted as three years of specialized experience for each year of required college study.
The second pillar is pay. The employer attests to the Department of Labor that it will pay at least the higher of two amounts: the actual wage paid to similarly qualified employees, or the prevailing wage for the occupation in the area of employment. These obligations are described on the Department of Labor’s H-1B program page.
H-1B status is initially granted for up to three years and can be extended to a total of six. It is a dual intent status, so it does not bar the worker from pursuing a green card. A spouse and unmarried children under 21 may qualify for H-4 status, and in certain circumstances the spouse may also apply for work authorization.
How does the H-1B process work, stage by stage?
The starting point is an accepted job offer. You cannot apply for H-1B on your own while job hunting; the employer is the petitioner. The usual sequence looks like this:
- Electronic registration. The employer registers the candidate in the USCIS system during the designated registration period. Only selected registrations may be followed by a cap-subject petition.
- Labor Condition Application. Before filing the petition, the employer obtains Department of Labor certification of the LCA (Form ETA-9035), attesting to the wage, work location and other conditions.
- Form I-129 petition. After selection, the employer files Form I-129 with USCIS, supported by evidence about the position, the worker’s education and the offer.
- Approval. USCIS issues its decision on Form I-797. The agency may first request additional evidence.
- Consulate or change of status. A worker abroad completes Form DS-160 and attends an interview at a U.S. embassy or consulate. A worker lawfully in the United States can often change status without leaving.
If USCIS has doubts, it issues a Request for Evidence. The response must be filed by the stated deadline and address every point raised. The questions most often concern whether the position truly requires a degree in a specific field and whether the wage matches the level declared in the LCA.
The statutory cap is 65,000 new H-1B approvals per year, plus 20,000 for holders of a U.S. master’s degree or higher. Starting with the fiscal year 2027 season, selection is weighted by wage: a registration at wage Level IV enters the pool four times, while Level I enters once. The details are set out in the DHS final rule in the Federal Register.
Put simply, the higher the offered wage relative to the benchmarks for the occupation and area, the better the odds. The statute also provides cap exemptions, which cover, among others, some petitions filed by universities and their affiliated nonprofit organizations. Extending status with the same employer follows a different track than a first petition.
What determines the cost of an H-1B case?
Total cost comes from several groups of expenses. The first is government fees: USCIS charges for registration and the I-129 petition, plus additional statutory fees whose amount depends partly on the employer’s size. Amounts change, so always check the current USCIS fee schedule (Form G-1055) on the day of filing. Premium processing is an optional extra.
The second group falls on the worker and family: the consular fee, translations, credential evaluation and H-4 filings for a spouse and children. The third is attorney fees, which depend on whether the matter is a first petition, a change of status, an extension or a change of employer. The scope of work and the billing arrangement are best agreed in writing up front.
A newer factor is the presidential proclamation that restricts entry of certain H-1B workers unless an additional payment accompanies a new petition. In September 2026 it was extended for 12 months; it mainly affects workers outside the United States. Its implementation is being litigated, so check the latest USCIS guidance before filing. Department of Labor wage rules also mean that splitting costs between employer and worker is not entirely up to the parties.
Ask about an H-1B consultation in English, Polish, Spanish or Portuguese: 212-227-8020
H-1B in New York: what matters locally?
The prevailing wage is set for a specific area of employment, so the same job can carry a different wage floor in Manhattan than upstate. That now matters twice: it shapes the LCA and the number of lottery entries. If a worker will split time between a Midtown office and a client site in New Jersey, every work location needs to be described accurately at the LCA stage.
Many young professionals in New York move to H-1B from student status after graduation and a period of OPT. In that case a change of status without leaving the country is usually possible, but it requires careful attention to dates and continuous lawful status. Anyone living in Brooklyn or Queens who is thinking about a trip home during this period should first check how travel would affect the pending case.
Workers abroad schedule an interview at the U.S. embassy or consulate that serves their place of residence once the petition is approved. A consular officer may ask for more documents and issue a 221(g) notice, which means further administrative processing. If you are weighing a different visa, such as a student or investor category, see our guide to nonimmigrant visas and choosing the right category.
What to expect when working with John Nicelli & Associates on an H-1B case
- Long experience in immigration law. H-1B cases combine USCIS, Department of Labor and State Department rules. John A. Nicelli, Esq. has practiced immigration law for more than 30 years, and the firm has served clients since 1985.
- Clear communication in a language you are comfortable with. The job description, degree and immigration history demand precision. The firm consults in English, Polish, Spanish and Portuguese, which helps avoid misunderstandings.
- Up-to-date knowledge of changes. Weighted selection, the proclamation and pending Labor Department proposals show how fast the legal landscape moves. John A. Nicelli has been a member of the American Immigration Lawyers Association (AILA) for more than 30 years.
- A clear plan of stages and roles. Employer and worker should know who prepares the LCA, who gathers documents and what happens after approval. It helps to walk through the entire process with the firm, including the consular interview.
- Flexible consultation options. The candidate may still be abroad while the employer is in New York. The firm offers consultations in person, by phone or by video conference, which makes cooperation easier for both sides.
More about John Nicelli & Associates — see the firm’s profile and immigration practice areas. The firm’s detailed H-1B service page (Polish-language site) also covers the steps after petition approval.
Common H-1B mistakes
The first mistake is starting at the last minute. The registration window is short, and the employer must set up an account, define the position and settle the wage level beforehand. The second is inconsistency: a degree in one field, job duties from another and a salary that does not match the stated wage level. Mismatches like these often lead to a request for evidence.
The third mistake involves status. A person in the U.S. waiting on a change of status should not make travel plans without checking the consequences. Likewise, changing employers requires a new petition filed by the new employer; a signed employment contract is not enough. Many problems start with the assumption that “the visa is done, the rest is paperwork.”
The fourth mistake is treating H-1B as the final destination. The status is time-limited, so anyone planning to stay permanently benefits from learning early about the employment-based green card path. We cover it in our guide to employment-based immigration and green cards through work.
The fifth mistake is underestimating consular preparation. The approved petition, passport, DS-160 confirmation and proof of education and employment should be complete and consistent with what the employer filed with USCIS. A single missing document can lead to a 221(g) notice and a longer case.
H-1B remains an important route to U.S. employment for professionals, but it requires many pieces to line up: the offer, the degree, the wage, the deadlines and both parties’ documents. The 2025–2026 changes mean planning now starts earlier than it used to.
Come to a consultation with your degree, the job description, the salary offer and your U.S. immigration history at hand. Talk through your H-1B case with John Nicelli & Associates — call 212-227-8020.
Every case requires an individual assessment — please contact John Nicelli & Associates about your situation. This material is for informational purposes only and does not constitute legal advice. Attorney advertising.
