H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models

*For more information, see 8 CFR §214.2(h)(4)(iii)(A). “Normally,” “common,” and “usually” are interpreted based on their plain language, dictionary definitions. They are not interpreted to mean “always.” 

**For more information see 8 CFR §214.2(h)(4)(iii)(C).

Some professions require an H-1B beneficiary to hold a state or local license authorizing the beneficiary to fully practice the specialty occupation.

If an occupation in the state of intended employment requires such a license, an H-1B beneficiary seeking classification in that occupation generally must have that license before the petition is approved, rather than at the time of filing the petition. See 8 CFR 214.2(h)(4)(v)(A)–(B). When a license is required, but there is no evidence of the beneficiary holding one, USCIS will generally issue a request for evidence of the required license.

In 2020, we implemented an electronic registration process for the H-1B cap. A cap-subject H-1B petition will not be considered to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year, unless the registration requirement is suspended. For more information about the H-1B registration process, visit our H-1B Electronic Registration Process webpage.

Step 1: (only required for specialty occupation and fashion model petitions): Employer/Agent Submits LCA to DOL for Certification.
The employer/agent must apply for and receive DOL certification of an LCA. For further information regarding LCA requirements and DOL's process, see the Foreign Labor Certification, Department of Labor page.

Step 2: Employer/Agent Submits Completed Form I-129 to USCIS.
The employer/agent should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS service center. Please see our I-129 Direct Filing Chart page. The DOL-certified LCA should be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 (PDF, 524.7 KB) for additional filing requirements.

Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.
Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.

Prospective specialty occupation and distinguished fashion model employers/agents must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer/agent. The application requires the employer/agent to attest that it will comply with the following labor requirements:

• The employer/agent will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.
• The employer/agent will provide working conditions that will not adversely affect other similarly employed workers.
• At the time of the labor condition application there is no strike or lockout at the place of employment.
• Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment.

As an H-1B specialty occupation worker or fashion model, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21), 8 CFR 214.2(h)(13)(iii)(D) and (E).

Under 8 CFR 214.2(h)(13)(iii)(D), if you are in H-1B status or previously held H-1B status, you may be eligible for an H-1B extension beyond the sixth year if at least 365 days have elapsed since a labor certification was filed with the Department of Labor on your behalf (if such certification is required) or an immigrant visa petition was filed with USCIS on your behalf. There is a limit on this exemption under 8 CFR 214.2(h)(13)(iii)(D)(10), which states that a beneficiary is ineligible for this exemption if they fail to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa being authorized for issuance, but that USCIS may excuse a failure to file in its discretion if the worker establishes that the failure to apply was due to circumstances beyond their control. When considering whether to excuse a worker’s failure to timely file within 1 year, USCIS will look at the totality of the circumstances, which may include whether there was a change of employment, whether the change of employment was voluntary, when and why the employment with the original employer ended, and what steps the individual and new employer took following the change of employment to file an adjustment of status application or apply for an immigrant visa. We may excuse a failure to timely file in cases of both voluntary and involuntary change of employment when considering the totality of the circumstance.    

Under 8 CFR 214.2(h)(13)(iii)(E), if you are in H-1B status or previously held H-1B status, you may be eligible for an H-1B extension beyond the sixth year if you are the beneficiary of an approved immigrant visa petition for classification under section 203(b)(1), (2), or (3) of the INA and are eligible to be granted that immigrant status but for application of the per country or worldwide limitations on immigrant visas. The petitioner must demonstrate such visa unavailability as of the date the H-1B petition is filed with USCIS.

Your employer will be liable for the reasonable costs of your return transportation if your employer terminates your employment before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign from your position.

The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year. An additional 20,000 petitions filed on behalf of beneficiaries with a master’s degree or higher from a U.S. institution of higher education are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to this numerical cap.

For further information about the numerical cap, see our H-1B Cap Season page.

Changing Employers

When can I begin working for a new H-1B employer if I change employers?

• If you are changing H-1B employers, you may begin working for the new employer as soon as they properly file a non-frivolous Form I-129 petition on your behalf, or as of the requested start date on that petition, whichever is later.
• To  be eligible for portability, you must not have been employed without authorization from the time of your last admission into the United States, and your new employer must properly file a new, non-frivolous petition before your H-1B period of authorized stay expires.

Will I still have employment authorization if I change employers?

• If you are eligible for H-1B portability, your employment is authorized until USCIS has made a decision on the Form I-129.
• If the new I-129 petition is approved, you may continue working for the new employer for the period of time indicated on the new petition approval.
• If the new petition is denied, you may continue working for your previous employer if your prior period of authorized employment is still valid, but your authorization to work based on portability ceases upon denial of the petition.
• If you are laid off, fired, quit, or otherwise cease employment with your previous employer, you may have up to 60 consecutive days or until the end of your authorized validity period, whichever is shorter, to find new employment, change status, or depart the country.

Can I move from cap-exempt to cap-subject employment?

• If you are moving from cap-exempt to cap-subject employment, your new employer’s H‑1B petition will be subject to the H-1B cap. If subject to the cap, your new employer must first submit an electronic registration when registration period opens. This is typically in March.
• If more registrations are submitted than projected as needed to meet the cap for a given fiscal year, registrations are selected by a random selection process. If the registration your employer submitted on your behalf is selected, they may file a petition for you with a start date of Oct. 1 (or later).
• You may begin working under the new, cap-subject petition after the new employer properly files a non-frivolous Form I-129 petition on your behalf, or as of the requested start date on that petition, whichever is later.
• If you are currently employed in a cap-exempt position, you may engage in concurrent employment in a cap-subject position as long as you will continue to be employed in the cap-exempt position. You may begin working concurrently for the cap-subject employer as soon as they properly file a non-frivolous Form I-129 petition on your behalf, or as of the requested start date on that petition, whichever is later. As long as you continue your cap-exempt employment, were previously counted toward the cap, or otherwise remain cap exempt, you will not become subject to the H-1B cap again during the same H-1B validity period.

Changing Employment Terms with the Same Employer

What if I want to start new employment or change employment terms with my current employer?

• Form I-129 is also used to request new employment or a change of employment with the same employer.
• If your current H-1B employer properly files a non-frivolous Form I-129 requesting new employment or a change of employment on your behalf, you are authorized to work according to the terms of the new or changed employment once that petition is filed, or as of the requested start date on that petition, whichever is later.

Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status. Please visit our Employment Authorization for Certain H-4 Dependent Spouses page to learn more.

USCIS reached a settlement agreement (PDF, 268.06 KB) in the case of MadKudu Inc., et al. v. U.S. Citizenship and Immigration Services, et al., No. 20-cv-2653 (N.D. Cal.). On Oct. 19, 2021, the U.S. District Court, Northern District of California, San Jose Division, granted final approval of the settlement agreement. This agreement outlines new, overarching guidance for adjudicating pending or future H-1B petitions for market research analysts.

Additionally, the agreement allows class members to submit a Form I-290B, Notice of Appeal or Motion, to request that certain denied Forms I-129, Petition for a Nonimmigrant Worker, seeking H-1B classification for a market research analyst be reopened and adjudicated per the terms of the settlement agreement. No fee will be charged for such a request. Class members have until April 26, 2022, to submit a Form I-290B.

Class members eligible to submit a Form I-290B are those that:

• Filed a Form I-129 H-1B petition between Jan. 1, 2019, and Oct. 19, 2021, for a market research analyst.
• USCIS denied the petition based on a finding that the Occupational Outlook Handbook (OOH) entry for a market research analyst did not establish that the occupation is a specialty occupation, and thus did not satisfy 8 CFR 214.2(h)(4)(iii)(A)(1).
• If not for this finding, the petition would have been approved.
• There is any amount of time remaining on the period specified in the certified Labor Condition Application (LCA) originally submitted with the underlying Form I-129 at the time that the Form I-290B is filed.

Class members whose eligible Form I-129 was denied may submit their Form I-290B (without fee) on or before April 26, 2022, to have their reopening request and, if eligibility is established, their underlying I-129 H-1B petition adjudicated per the terms of the settlement agreement.

USCIS will make a decision on all eligible, timely-filed reopening requests within 90 days of our receipt of the physical file at the adjudicating office. USCIS will attempt to prioritize reopening requests for petitions with LCAs expiring less than 90 days after the Form I-290B is properly filed with USCIS.

If we determine that the underlying petition is not eligible for this reopening process, in accordance with the bullets above (for example, you are not a class member eligible to submit a Form I-290B under the settlement agreement), we will reject the Form I-290B.

Filing Instructions

All Forms I-290B must be submitted to the Nebraska Service Center, on or before April 26, 2022, at the addresses below.

When submitting Form I-290B, you should:

1. Include a cover sheet to clearly identify that the Form I-290B is filed by a claimed member of the class.
2. Indicate on the cover sheet and Form I-290B the name of the office (name of the Service Center or Administrative Appeals Office (AAO)) that made the last adverse decision.
3. Demonstrate class membership by submitting a copy of USCIS’ denial of the underlying H-1B petition (if you appealed to, and had your appeal dismissed by the AAO, you should submit a copy of the AAO decision instead of, or in addition to, the service center denial). The denial of the original H-1B petition should show that:
   • The petition was filed on or after Jan. 1, 2019, through Oct. 19, 2021, (for cases in which the denial does not include the filing date of the petition, you should submit a copy of USCIS’ receipt notice for the petition).
   • USCIS found that the job fell within the market research analyst occupation;
   • USCIS considered the OOH entry for market research analysts;
   • USCIS found that the market research analyst occupation was not a specialty occupation under the first regulatory criterion at 8 CFR 214.2(h)(4)(iii)(A)(1); and
   • The sole basis for the denial was that the position was not within a specialty occupation.
4. Demonstrate (for example, by submitting a copy of the LCA filed with the denied petition) that there is any amount of time remaining on the period specified in the certified LCA at the time that the I-290B is filed.
5. State in the reopening request that you request reopening.
6. Provide a receipt number for the underlying Form I-129 petition.
7. Confirm that the offer of employment as stated in the underlying Form I-129 petition remains valid.
8. Indicate if you want a new start and/or end date for the validity period (as long as the new date(s) falls within the period in the certified LCA previously submitted with the petition).

• H-1B Cap Season
• Employment Authorization for Certain H-4 Dependent Spouses
• Fee Increase for Certain H-1B and L-1 Petitions (Public Law 114-113)
• Combating Fraud and Abuse in the H-1B Visa Program
• H-1B Electronic Registration Process
• Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)
• Frequently Asked Questions about Part 6 of Form I-129, Petition for a Nonimmigrant Worker

• USCIS Actions to Support Adjustment of Status Applicants Who are in H-1B Status in the United States