H-1B Visa Lawyer in New York City
Cap registrations, petitions, transfers, extensions, and RFE responses for specialty occupation workers and the employers who sponsor them.
Overview
What This Practice Covers — and Who Needs It
The H-1B visa is the primary nonimmigrant category for foreign workers in specialty occupations — jobs that require the theoretical and practical application of a body of highly specialized knowledge and at least a bachelor’s degree in a directly related field. It is the volume workhorse of employment-based nonimmigrant immigration, serving software engineers, architects, doctors, accountants, researchers, financial analysts, and professionals across dozens of other specialty fields. It is also one of the most procedurally complex and strictly regulated visa categories, with an annual cap subjected to lottery selection, multi-step Department of Labor compliance requirements, and a shifting regulatory landscape that has changed substantially in 2025 and 2026.
Yazdi Law represents both H-1B petitioning employers and beneficiary workers across the full life cycle of H-1B practice — FY 2027 cap registrations during the March 2026 window and subsequent petitions for selected beneficiaries, cap-exempt petitions for qualifying institutions and their affiliates, transfers between employers, extensions and amendments, H-4 dependent status and H-4 employment authorization where available, and Requests for Evidence responses. Representation is available in English, Farsi, and Punjabi. Call (917) 565-7286 for a free consultation — particularly urgent if you are approaching an H-1B deadline or planning for the next cap season.
Legal Foundation
The Legal Framework
The H-1B visa is governed by Immigration and Nationality Act § 101(a)(15)(H)(i)(b) (8 U.S.C. § 1101(a)(15)(H)(i)(b)) and implemented by regulations at 8 C.F.R. § 214.2(h)(4) and related provisions. Additional requirements come from the Department of Labor (Labor Condition Application regulations at 20 C.F.R. Part 655) and from USCIS policy guidance. The regulatory framework has changed substantially in 2025 and 2026, and accurate current knowledge matters.
The specialty occupation standard
H-1B eligibility requires that the proffered position qualifies as a specialty occupation — a position that requires the theoretical and practical application of a body of highly specialized knowledge, with a bachelor’s degree or higher in a directly related specific specialty as a minimum for entry into the occupation. The specialty occupation standard is one of the most scrutinized areas of H-1B adjudication. USCIS evaluates whether the bachelor’s requirement is a genuine industry norm, whether the degree is in a specific specialty directly related to the duties (rather than a generic business or computer science degree for unrelated roles), and whether the actual job duties require specialized knowledge. Poorly documented specialty occupation analysis is a leading cause of Requests for Evidence and denials.
The annual cap and cap-exempt petitions
Most new H-1B petitions are subject to the annual statutory cap: 65,000 visas under the regular cap for bachelor’s-degree-level beneficiaries, plus 20,000 additional visas under the U.S. master’s cap for beneficiaries with advanced degrees from U.S. institutions. Because demand far exceeds supply, USCIS conducts an annual lottery registration process to select registrants eligible to file cap-subject petitions. Certain categories of employment are exempt from the cap: petitions by institutions of higher education, nonprofit research organizations affiliated with institutions of higher education, and governmental research organizations can be filed at any time without cap-subject lottery registration. Cap-exempt status turns on specific regulatory definitions that require careful analysis — not every nonprofit or academic-adjacent employer qualifies.
The weighted wage-based selection rule
Effective February 27, 2026, USCIS implemented a weighted selection process for the H-1B cap lottery, replacing the pure random selection used in prior years. Under the new rule, a registrant’s chance of selection depends on the Occupational Employment and Wage Statistics (OEWS) wage level of the offered position. A Wage Level IV position (the highest tier) receives four entries in the selection pool; Wage Level III receives three entries; Wage Level II receives two entries; Wage Level I receives one entry. The rule applies to both the regular 65,000 cap and the 20,000 U.S. master’s cap. For the FY 2027 cap season, positions at higher wage levels will have materially higher selection chances. This rule is subject to ongoing legal review and could be modified by court order.
The $100,000 Presidential Proclamation payment
Under a Presidential Proclamation issued September 19, 2025 (effective September 21, 2025), certain H-1B petitions must be accompanied by an additional $100,000 payment as a condition of eligibility. The Proclamation applies to specified categories of H-1B petitions and includes exceptions — notably, change-of-status petitions for individuals already in the United States (such as F-1 students on OPT transitioning to H-1B) are generally not subject to the additional payment. The Proclamation has significantly shifted H-1B planning, particularly for petitions requiring consular processing for beneficiaries abroad. Case-specific analysis of whether the payment applies is essential at the outset of every H-1B engagement.
Labor Condition Application (LCA)
Before filing an H-1B petition, the employer must obtain a certified Labor Condition Application from the Department of Labor under 20 C.F.R. § 655.700 et seq. The LCA requires the employer to attest to paying the higher of the prevailing wage or the actual wage paid to similarly situated employees, to providing working conditions that will not adversely affect other workers, to the absence of a strike or lockout, and to notice requirements. LCA compliance is not a formality — violations can result in back-wage liability, civil penalties, and debarment from future H-1B sponsorship. We coordinate LCA filing as part of the H-1B petition preparation.
Duration and extensions
H-1B status is typically granted for up to three years initially, with extensions available in increments up to three years for a total maximum of six years. Extensions beyond six years are available under specific circumstances — most commonly under AC21 § 104(c) and § 106(a)-(b), which allow extensions beyond six years for beneficiaries of approved immigrant visa petitions (EB-1, EB-2, or EB-3) who are waiting for visa availability due to per-country or worldwide limitations, or for beneficiaries for whom a labor certification has been pending with DOL for at least 365 days. These extension rules matter substantially for beneficiaries from countries with long immigrant visa backlogs (particularly India and China).
How It Works
The Process, Step by Step
H-1B cases proceed through different sequences depending on whether the case is cap-subject, cap-exempt, or a transfer, extension, or amendment. The descriptions below cover the most common scenarios.
Cap-subject registration (December through March)
For FY 2027 petitions (employment starting on or after October 1, 2026), the USCIS electronic registration window opens at noon Eastern on March 4, 2026 and closes at 5:00 p.m. Eastern on March 19, 2026. Preparation begins in December or January — identifying candidates, evaluating specialty occupation fit, determining prevailing wage levels under the OEWS system, confirming petitioner eligibility, and creating USCIS organizational accounts. The $215 per-beneficiary registration fee is paid at registration. Under the weighted selection rule, we advise on the wage-level analysis that will determine selection chances. Selection results are typically released by March 31, 2026, and selected registrants have 90 days to file the full petition.
Cap-subject petition preparation (April through June)
Once a registration is selected, we prepare Form I-129 with the H Classification Supplement and H-1B Data Collection Supplement, the certified LCA, supporting evidence of specialty occupation qualification, beneficiary credentials (degree evaluation where foreign degrees are involved, transcripts, relevant experience documentation), employer documentation (business structure, financial capacity, ability to pay), and the required $100,000 payment where the Presidential Proclamation applies. Petitions are filed with USCIS; premium processing is frequently used at this stage given the tight timeline to the October 1 start date.
Cap-exempt petitions (year-round)
Petitions by qualifying institutions of higher education, affiliated nonprofit research organizations, and governmental research organizations are exempt from the cap and can be filed at any time without lottery registration. Cap-exempt status requires careful regulatory analysis — the definition of ‘affiliated’ nonprofit research under 8 C.F.R. § 214.2(h)(8)(iii)(F)(2) is specific, and not every academic-adjacent employer qualifies. Cap-exempt petitions otherwise follow the same substantive standards as cap-subject petitions.
Transfers between employers
H-1B beneficiaries working for one employer can transfer to another employer through a new H-1B petition by the new employer. Under AC21 portability provisions (INA § 214(n); 8 U.S.C. § 1184(n)), the beneficiary may begin work for the new employer upon USCIS receipt of the new petition — not requiring approval before starting the new role, though with material risk if the new petition is later denied. Transfers do not require new cap-subject lottery selection because the beneficiary has previously been counted against the cap. We prepare transfer petitions with attention to the specialty occupation analysis for the new role (which USCIS evaluates fresh) and the beneficiary’s maintenance of status.
Extensions and amendments
Extensions of H-1B status are filed on Form I-129 before the current status expires, establishing continued eligibility and the continuing availability of the specialty occupation position. Amendments are required when material changes occur — most notably changes in work location that require a new LCA under Matter of Simeio Solutions, LLC (2015 AAO), or material changes in job duties. Failure to file amendments for material changes can constitute a status violation with significant consequences. We calendar extension deadlines and evaluate amendment requirements throughout the engagement.
Requests for Evidence and denials
USCIS issues RFEs when specific evidentiary gaps or legal concerns arise. Common H-1B RFE issues include specialty occupation analysis, beneficiary qualifications (particularly degree equivalency for foreign credentials), employer-employee relationship for third-party placement cases, wage level appropriateness, and LCA compliance. RFE responses require targeted additional evidence and legal analysis addressing the specific concerns raised. Denial of an H-1B petition can be challenged through administrative motion (motion to reopen or reconsider), appeal to the Administrative Appeals Office, or through a subsequent refiled petition with additional evidence.
H-4 dependents and work authorization
Spouses and unmarried children under 21 of H-1B beneficiaries are eligible for H-4 dependent status. H-4 spouses may be eligible for employment authorization under 8 C.F.R. § 214.2(h)(9)(iv) if the H-1B principal is the beneficiary of an approved I-140 employment-based immigrant petition or has had H-1B status extended under AC21 provisions beyond six years. H-4 EAD processing times and renewal timing are significant planning considerations for H-1B families with working spouses.
What to Watch For
Common Pitfalls and How We Avoid Them
H-1B practice has recurring failure modes that sophisticated counsel anticipates and avoids.
Weak specialty occupation documentation
The specialty occupation standard is the single most common ground for H-1B RFEs and denials. Generic job descriptions that could apply to positions not requiring a specific degree, degrees in fields not directly related to the position duties (such as a generic business degree for a software engineering role), and employer documentation that fails to show the position actually requires specialized knowledge all produce problems. We develop specialty occupation analysis carefully — linking specific duties to the required degree field, documenting industry norms, and presenting the position in terms that directly address USCIS’s scrutiny criteria.
Wage level miscalculation
The prevailing wage determination drives both the LCA compliance requirement and, under the new 2026 weighted selection rule, the cap lottery selection chances. Under-reporting the wage level to save on wages creates LCA violations with back-wage and penalty exposure. Over-reporting the wage level to improve lottery odds creates risk if USCIS determines the position does not actually require the higher-level duties. Accurate wage-level analysis based on actual job duties is essential.
Material changes without amendment filings
When material changes occur in the H-1B employment — new work location requiring a new LCA, substantial change in job duties, change in employer corporate structure — an H-1B amendment is required before the change takes effect. Failure to file amendments timely is a status violation. We monitor material changes and counsel clients on amendment requirements proactively.
Missing extension deadlines
An H-1B beneficiary whose status expires before an extension is filed falls out of status. Late extensions may still be approvable in some circumstances, but the risks compound the longer the gap. We calendar extension deadlines well in advance and recommend filing 4-6 months before expiration to allow time for RFEs and other complications.
Third-party placement and employer-employee relationship issues
H-1B petitions involving third-party worksites (consulting firm staffs placed at client locations) face heightened USCIS scrutiny under the employer-employee relationship doctrine. Petitions that fail to document the petitioning employer’s continuing right to control the beneficiary’s work, the existence of the underlying client engagement, and the specialty nature of the duties at the client site frequently draw RFEs or denials. These cases require more extensive documentation than in-house employment cases.
Free Consultation
Planning for H-1B cap season or need a transfer, extension, or RFE response? Contact us.
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Costs and What's Included
H-1B cases at Yazdi Law are handled on a flat fee structure set at the initial consultation and detailed in a written retainer agreement before any work begins. Specific fees depend on case type — cap registration is priced differently from cap-subject petition preparation, and both are priced differently from transfers, extensions, or complex RFE responses.
USCIS and Department of Labor filing fees are separate from attorney fees and paid primarily by the petitioning employer. Current fees as of this writing: H-1B cap registration fee of $215 per beneficiary; Form I-129 base filing fee of $460 or more depending on employer size (additional ACWIA fees, fraud detection fees, and asylum program fees may apply); premium processing fee of $2,805 through February 28, 2026 and $2,965 effective March 1, 2026; and the $100,000 Presidential Proclamation payment where applicable to specific petition categories. LCA filing with the Department of Labor has no filing fee but requires employer compliance with posting and documentation requirements.
Representation typically includes eligibility evaluation and strategic planning, cap registration (for cap-subject cases), LCA preparation and filing, specialty occupation analysis and documentation, beneficiary credential evaluation coordination (where foreign degrees require equivalency analysis), Form I-129 and all supplements preparation, evidence compilation, response to any Requests for Evidence, coordination of consular processing or change of status, and H-4 dependent status filings where applicable. Initial consultations are free.
FAQ
Frequently Asked Questions
My employer wants to sponsor me for H-1B. What happens first?
What is the $100,000 H-1B fee I've heard about?
Can my spouse work if I am on H-1B?
I'm on OPT and my employer wants to sponsor me. What should I know about the cap-gap period?
Schedule a Consultation
If you are an employer considering sponsoring an H-1B candidate, an F-1 student or current H-1B holder needing to plan next steps, or an H-1B beneficiary dealing with a transfer, extension, RFE, or denial, call Yazdi Law at (917) 565-7286 or request a consultation online. Our Midtown Manhattan office is at 261 Madison Avenue, Suite 1035, two blocks from Grand Central Terminal. Initial consultations are free. Representation is available in English, Farsi, and Punjabi. H-1B practice is deadline-driven — early engagement allows the most strategic options.
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Disclaimer: The information on this page is for general informational purposes and does not constitute legal advice. H-1B regulations, USCIS procedures, filing fees, cap lottery rules, and the Presidential Proclamation payment requirement are subject to ongoing regulatory and legal review. Information reflects the state of the law as of the date of publication. Every case is unique; prior results do not guarantee a similar outcome; and outcomes depend on specific facts and circumstances. Contacting Yazdi Law does not create an attorney-client relationship. Attorney Advertising.