H-1B Visa - Employment Visa For Highly Skilled Workers

The basic requirement for the H-1B visa is that the applicant has a U.S. bachelor's degree or a foreign university degree that is at least equivalent to a U.S. bachelor's degree. Several years of professional experience or a combination of both can also qualify an applicant for an H-1B visa. In addition, the H-1B visa can also be applied for by models, who generally do not have a university degree in their field.

If the applicant has obtained their degree from a foreign educational institution, they must prove that the degree is at least equivalent to a U.S. bachelor's degree. Various service providers in the U.S. are available for this purpose, which can carry out such an assessment and issue a corresponding certificate recognized by the immigration authorities (“foreign credential evaluation”). Those who have obtained a master's degree from a university in the U.S. may benefit from the fact that a certain quota of H-1B work visas is reserved for people with such a degree.

When applying for an H-1B visa, as with all other visas, you must prove that you have a specific job offer from the U.S.

The job offered must require the applicant's specific skills, in particular a U.S. bachelor's degree. The applicant's expected salary must not be lower than the amount paid to employees with comparable experience and qualifications, and their hiring must not adversely affect that group of employees. Last but not least, there must not be a strike at the company where the applicant is to be employed.

Before the employer can submit their petition for the applicant to the immigration authorities, they must submit a Labor Condition Attestation (LCA) to the U.S. Department of Labor. This must include information on the salary and the absence of strikes. Furthermore, it must be confirmed that either the union responsible for the applicant has been notified of the H-1B petition or, if there is no union, that the employer has posted a notice to this effect in their company for at least ten days.

However, if the company relies increasingly on employees with H-1B status, this can complicate the process.

In 2020, the application process was significantly redesigned and an electronic registration process was introduced (“H-1B electronic registration process”).

In the first step, the U.S. company that wants to employ foreign nationals must register with USCIS in March. One week later, the registration period usually begins, during which the U.S. company (“petitioner”) can submit data on potential foreign employees (“beneficiaries”) for a period of approximately two weeks. If more applications are received than visas can ultimately be issued, a lottery is held and the “winners” are then informed that petitions can be submitted starting on April 1. Depending on how many petitions are received, another registration period may be held starting in early August.

The petitions, which can be submitted from April 1, are somewhat more extensive than the information that must be submitted for registration; they include, among other things, the I-129 application form and documents relating to the potential employee, such as proof of their education and, if applicable, the equivalence of their foreign degree.

Those who do not expedite the processing by paying the so-called premium processing fee (USD 2,500) will not receive a response to their petition after approximately 15 days, but may have to wait several months. Once the petition has been approved, the actual visa can be applied for at a U.S. consulate in a final step.

The H-1B visa is therefore subject to certain deadlines and cannot be applied for at any time, unlike many other work visas (e.g. categories E, L, O, J).

The issuance of H-1B visas is subject to quotas. Only 65,000 H-1B visas are issued per fiscal year (which begins in October of each year), with an additional 20,000 available to applicants who have earned a master's degree or higher from a U.S. university. Due to various special regulations, including those specific to nationality, far more than 85,000 H-1B visas are ultimately issued.

In September 2025, President Donald Trump issued a presidential proclamation drastically increasing the cost of new H-1B applications. Since September 21, 2025, an additional government fee of USD 100,000 has been payable for new H-1B petitions. This fee is in addition to the existing application fees and represents one of the most significant changes to the H-1B program since its inception.

As things stand, the USD 100,000 fee only applies to new H-1B petitions within a set period (currently planned to apply to petitions filed between September 21, 2025, and September 21, 2026). Existing H-1B holders and extensions of already approved H-1B status are generally not affected by this special fee. The fee is also designed as a one-time additional fee for the initial application, not as an annually recurring amount.

The proclamation also provides for exceptions, particularly in cases where the hiring of an H-1B worker is in the “national interest” of the U.S. or does not pose a threat to national security. In practice, this means that certain industries or employers may be exempt from the payment obligation under strict conditions if they provide appropriate evidence.

Since this is not a law passed by Congress but rather a measure based on presidential powers, the new fee is legally controversial. Several lawsuits against the USD 100,000 fee are already pending, and courts have shown in other contexts (e.g. fee increases in the EB-5 area) that they can declare excessive or procedurally flawed fee increases invalid. It is therefore possible that the regulation will be repealed, modified, or reversed by a new administration in the future. Employers should monitor the situation closely and seek legal advice before filing an H-1B application.

In practice, the new fee places a significantly greater burden on small and medium-sized businesses than on large corporations, which are better able to absorb the additional costs. For some of our clients, this raises the question of whether alternative visa categories (e.g. E-2 visa, L-1 visa, O-1 visa) or, in the long term, a job-based or investment-based green card strategy make more sense and are easier to plan than an H-1B application under the current conditions.

In most cases, the H-1B visa is initially issued for three years and can be extended thereafter. The maximum stay may not exceed six years. However, this maximum stay may not apply if an I-140 petition for a green card is pending.

Unlike many other visas, including the H-2B visa, applicants for an H-1B visa do not have to prove that they have no intention of immigrating or that they maintain a foreign residence. Accordingly, they can apply for a green card while working in the U.S. on their H-1B visa without this being to their legal disadvantage.

Spouses and unmarried children under the age of 21 can apply for an H-4 visa to accompany the applicant. However, they are not permitted to work. 

There is one important exception to this rule: if an I-140 petition has been approved for the H-1B visa holder, the spouse with an H-4 visa can apply for a work permit.