H1B Visa

What is the H1B Visa?

The H1B visa is a nonimmigrant work visa provided for foreign workers to engage in a specialty occupation in the United States, and it requires an employer to act as the petitioner on behalf of the foreign employee. The specialty occupation requirement means that the position must typically require at least a bachelor’s degree or equivalent work experience (subject to relevant credential evaluations).

Each year, there is a general quota of 65,000 H1B visas. Additionally, there are 20,000 extra visas available under the Master’s Cap for those with a U.S. master’s degree or higher. This brings the total annual quota to 85,000 visas.

If Company A is Willing to Sponsor My H1B Application but I Currently Work for Company B, Is That Allowed?

Yes, it is allowed. The H1B lottery does not require you to be employed by the sponsoring employer at the time of the draw.

I Am a Master’s Student Set to Graduate This May. If I Receive an Offer from a Company, Can I Enter the Lottery?

Yes, you can. As long as you have a university degree (the degree does not need to be from a U.S. institution), you can enter the lottery. If you expect to graduate on time, graduate students can also apply under the Master’s Cap.

There is no need to provide your diploma during the lottery application process; however, you will need to submit your graduation certificate and related documents later on for the formal application. If you are unsure about graduating on time, it might be safer to apply using your undergraduate degree credentials. As this is a case-by-case matter, it is advisable to consult with an immigration attorney if you have concerns.

Can I Enter the H1B Lottery While I Am Outside the United States?

Yes, you can. The H1B visa does not require you to be in the U.S. at the time of application.

Can I Work During the Gap Period?

For example, suppose I graduate in May and my OPT begins in July and ends the following July, but I am selected in the H1B lottery in April and the H1B status only becomes effective in October.

Yes, if you qualify for the Cap-Gap OPT extension. When you are selected in the H1B lottery but your H1B start date falls after your OPT expires, USCIS automatically extends your F1 status and work authorization to bridge the gap. To qualify, you must meet all of the following:

  1. You are still within your post-completion OPT period (or the 60-day grace period).
  2. Your employer filed a timely cap-subject H1B petition requesting a Change of Status.
  3. You have received the USCIS Receipt Notice.
Important update: Under a DHS rule effective January 17, 2025, the cap-gap extension now runs until April 1 of the following fiscal year, rather than ending on October 1 as it previously did. The change is intended to prevent gaps in status or work authorization caused by USCIS processing delays. Older guides still say the extension ends September 30 — that information is out of date.
Because this is a Change of Status petition, you must remain inside the U.S. while the change is pending; departing the country can invalidate the cap-gap benefit. Request an updated I-20 from your school and keep it on record.

National Interest Waiver

What is the NIW?

The National Interest Waiver (NIW) is an avenue toward a green card (not just a work visa) under the EB-2 employment-based immigration category, offering a special preferential pathway.

Typically, in the EB-2 employment-based process, the first step is for the employer to obtain a Labor Certification from the U.S. Department of Labor (the PERM process), which involves addressing issues such as whether the position is properly defined and if the offered salary is sufficiently high. Only after obtaining the approved Labor Certification can one file an immigrant petition with USCIS. However, with an NIW, you can bypass the Labor Certification (PERM) process and file the petition directly with USCIS.

What Are the Advantages of Applying for an NIW?

  1. You avoid the lengthy Labor Certification (PERM) process.
  2. You do not need an employer sponsor — you can self-petition.
  3. There is no job offer requirement, so even students who have not yet started working can apply if they meet the criteria.
USCIS offers premium processing for NIW applications, with a response typically within 45 business days.

Do I Qualify for an NIW?

The Four Main Points for an NIW Application

  1. You must meet the EB-2 requirements for either holding an advanced degree or possessing exceptional ability. Advanced Degree:

    • A master’s degree or higher (obtained either in the U.S. or abroad). However, if the degree is from a foreign institution, USCIS may need to determine if it is equivalent to the corresponding U.S. degree (in some cases, a foreign master’s degree might be deemed equivalent only to a U.S. bachelor’s degree).
    • If you do not possess a master’s degree or higher, a bachelor’s degree plus at least 5 years of professional experience in the relevant field can also qualify.
    Exceptional Ability: This refers to having extraordinary skills in the sciences, business, or arts. Supporting documents may include certifications, memberships in professional organizations, publications in major academic journals, etc.

  2. The work you intend to pursue in the future must have substantial merit and national importance. This means you need to explain that the work or project you plan to engage in is of significant value and is crucial for the future development of the United States. The evidence does not necessarily have to show immediate, quantifiable economic impact; contributions to advancing knowledge in a specific field are also considered.

  3. You must be well positioned, with the necessary knowledge, resources, and capabilities, to carry out your proposed work. After explaining the importance of your future work for the U.S., you need to demonstrate that you are capable of executing this plan. Supporting evidence may include your academic and professional background, past successes in similar fields, future plans, and expressions of interest from potential clients or investors.

  4. You must show that waiving the labor certification requirement (bypassing the PERM process) would benefit the United States. Essentially, you need to demonstrate that awarding you a green card without requiring employer sponsorship would yield greater benefits for the country than following the standard process which involves labor certification. This often involves highlighting your unique qualities and proving that U.S. workers cannot easily replace you for that position.

Applicants must demonstrate that, even though there may be other qualified U.S. workers for the position, the United States would still greatly benefit from your unique contributions. Frequently, supporting evidence highlights your distinctive traits and explains why you cannot be readily replaced by another potential American candidate in the same role.

I’ve Heard That Applying for an NIW Is Easier for STEM Fields?

Under policy changes made by the Biden administration in 2022, STEM fields have become more favorable for NIW applications for several reasons:

  1. One of the NIW requirements is that your proposed work has substantial merit and national importance. STEM fields are now widely recognized as critical for maintaining U.S. competitiveness, effectively giving STEM students a leg up when demonstrating their work’s importance.
  2. Additionally, the requirement to be well positioned to execute your plan is often easier in STEM if you have an advanced degree (especially a PhD) and plan to work in a STEM-related area. USCIS is more likely to consider your application favorably if your future direction aligns with STEM.
  3. Finally, the ability to bypass the labor certification process (PERM) aligns well with the priority given to critical and emerging technologies—areas that overlap significantly with many STEM disciplines and are heavily emphasized in U.S. policy for national security and competitiveness.
To avoid issues where theoretical fields might struggle to demonstrate clear economic benefits or tangible future prospects, USCIS guidelines note that even theoretical sciences (like pure mathematics or theoretical physics) can be considered as contributing to U.S. competitiveness and national security, thereby opening the door for NIW opportunities for researchers in these fields.
Given that the PERM labor certification process is increasingly lengthy (with most applications now taking over 12 months) and that the EB-2 queue has moved very slowly, applying for an NIW first can be advantageous. It provides more flexibility for future job changes or for potentially applying under the EB-1 (Extraordinary Ability) category later on.
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Last updated 26 Jul 2026, 01:00 -0400 . history