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H-1B Visa Program

H-1B VISA PROGRAM: KEY CHANGES AND ELIGIBILITY FOR FY2026 H-1B CAP SEASON

The H-1B visa program is one of the most popular pathways for foreign workers to legally work in the United States. Designed primarily for skilled professionals in specialty occupations the H-1B visa allows individuals to work for a U.S. employer on a temporary basis for up to three years, with the possibility of extending the visa for an additional three years. For U.S. employers, the program opens the door to a world of highly skilled talent, offering them a chance to stay competitive in a global marketplace.

As the registration window for the 2026 H-1B fiscal year opens in early March 2025, now is the time to begin planning. Many of the recent changes to the H-1B program bring both opportunities and challenges for employers and foreign workers alike (H-1B visa). At KBIW KURPIEJEWSKI & ASSOCIATES, PLLC, we emphasize the importance of early engagement with our clients to carefully strategize, and ensure the most efficient, and smooth submission of the required documentation maximizing the likelihood of success. Our goal is to offer you complete peace of mind, whether you are an employer or a foreign employee, so you can focus on advancing your professional objectives and let us navigate the complexities of the immigration process on your behalf.

The H-1B visa program has been a focal point in recent months, amidst intense political debates regarding its impact on American workers. Though in his first term President Trump expressed serious concerns and skepticism about the program, he also acknowledged its importance in securing highly skilled labor for U.S. industries. Under the first Trump administration, the program faced more scrutiny, with significantly higher rejection rates and greater emphasis on ensuring that H-1B visas went to the most qualified candidates. Currently, just one week into the new administration, changes, including in the immigration law, are unfolding rapidly. Therefore, it is critical for both those holding H-1B status and those seeking to secure it—including employers aiming to hire and sponsor foreign workers—to stay informed and adapt to these shifts.

As of January 17, 2025, the U.S. Department of Homeland Security (DHS)’s recent regulations, published at the end of former President Biden’s term, are now in effect. According to U.S. Citizenship and Immigration Services (USCIS), these changes aim to provide greater flexibility for both employers and workers by modernizing the definition of “specialty occupation” positions and expanding eligibility for nonprofit and governmental research organizations, which are exempt from the annual H-1B visa cap. The updates also benefit F-1 visa students seeking to transition to H-1B status, helping to avoid disruptions in their lawful status and employment authorization. Additionally, the new rules streamline the application process for individuals with prior H-1B approvals, speed up processing times, and allow H-1B visa beneficiaries with a controlling interest in the petitioning organization to qualify under certain conditions. These changes are significant. For example, allowing H-1B beneficiaries with a controlling interest in the petitioning organization to qualify for the benefits of the program represents a major shift in the policy. Though subject to certain limitations, this change opens up new possibilities for entrepreneurs and worker-owners to obtain H-1Bs through entities in which they hold a substantial interest. To further strengthen the integrity of the program, the regulations impose stricter requirements on employers to demonstrate a bona fide specialty occupation position and ensure alignment with the Labor Condition Application. The changes also require that all petitions, starting January 17, 2025, use a newly updated Form I-129. USCIS will reject the H-1B petitions based on the 04/01/24 edition of Form I-129, if USCIS receives them on or after Jan. 17, 2025. Changes have also been made to the Registration Fee, which, in the upcoming March 2025 lottery, will cost the employer $215, instead of the $10 fee that was charged until the March 2024 H-1B registration period.

Navigating the complexities of H-1B petitions requires expertise, and working with an experienced immigration attorney can make a significant difference. The changes to the H-1B program and H1-B processing time bring both opportunities and challenges for employers and foreign workers alike. At KBIW KURPIEJEWSKI & ASSOCIATES, PLLC, we guide both employers and employees through the intricacies of the H-1B visa process, helping them meet the program’s rigorous standards while doing our best to obtain timely and smooth approvals.

Is the H-1B Visa Program Right for You?

The majority of H-1B petitions filed with U.S. Citizenship and Immigration Services (USCIS) are for specialty occupation positions. These roles require a theoretical and practical application of highly specialized knowledge, with at least a bachelor’s degree (or its equivalent) in a specific specialty as a minimum requirement for foreign employees. Some of the most common fields for H-1B petition beneficiaries include computer-related roles (e.g., software engineers, data scientists), engineering and architecture (e.g., geotechnical engineers, architects), administrative specializations (e.g., financial analysts, operations managers), as well as professions in medicine, health, life sciences, mathematics, and education. Other common fields include art, social sciences, and law. Provided they can demonstrate that their positions meet the requisite criteria under the H-1B standards, workers in many other fields may also be eligible and take advantage of the program. 

To qualify as a specialty occupation, the position must meet at least one of the following criteria (though ideally, all four should apply): 

  1. A Bachelor’s degree of higher (or its equivalent) is typically required for entry into the role;
  2. The degree requirement is standard within the industry for similar positions, in similar organizations; or in the alternative, the job is so specialized and unique that only one with a degree can adequately perform it;
  3. The employer normally requires a degree or its equivalent for the position; 
  4. The job’s duties are so complex and specialized that the knowledge needed to perform them is typically associated with holding at least, a bachelor’s degree.

To be eligible for under H1B visa program for the specialty occupation classification, a beneficiary must meet one of the following criteria: 

  • Hold a U.S. bachelor’s (or higher) degree in the relevant field required by the specialty occupation from an accredited institution;
  • Hold a foreign degree that is equivalent to that of a U.S. bachelor’s (or higher) degree in the relevant field required by the specialty occupation from an accredited institution;
  • Hold an unrestricted state license, registration or certification that authorizes the beneficiary to fully practice the proffered specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
  • Have equivalent education, specialized training, and/or progressively responsible experience that matches the level of a U.S. bachelor’s degree or higher in the field, along with documented expertise gained through relevant professional experience in the specialty.

The H-1B3 subcategory for fashion models requires that the offered position be for a model of recognized prominence, which the petitioner must establish by either demonstrating that the services of the beneficiary to be performed in the U.S., involve events or productions that have a “distinguished reputation,” and/or that the services of the beneficiary will be performed for a qualifying organization that has a distinguished reputation for, or record of employing prominent individuals legally authorized to work in the United States. Additionally, H-1B3 requires evidence that the beneficiary is a fashion model of distinguished merit and ability.

How KBIW Kurpiejewski & Associates, PLLC Can Help

Embarking on the journey to secure an H-1B visa can be both exciting and overwhelming. With so many details to manage and ever-changing immigration regulations, it is understandable if you feel unsure about how to proceed. At KBIW Kurpiejewski & Associates, PLLC, we provide comprehensive legal assistance of immigration lawyer to both petitioning employers and employees, ensuring that the entire process goes smoothly. We guide employers through the H-1B lottery registration, help with the Labor Condition Application, and file the H-1B petition with USCIS, including responding to any Requests for Evidence. For employees, we offer personalized support, whether it is adjusting your status if you are in the U.S. or assisting with the visa application process abroad including H-1B visa. Additionally, we understand that navigating the complexities of immigration law can lead to uncertainty, which is why we offer second opinion services for clients seeking reassurance in their case. Whether it is answering your questions, ensuring all documents are in order, or keeping you updated on the status of your case, we are here every step of the way. 

Let us do the heavy lifting with the H-1B application process and do not stress over deadlines or paperwork; we got it covered. To schedule a consultation at our law firm about your immigration situation and learn how we can help you, please call us at (212) 220-3956 or email office@kbiw.com.

Disclaimer: The information provided on this website is intended for general informational purposes only and should not be construed as legal advice. This site constitutes attorney advertising. Past case results do not guarantee future outcomes, as each case is unique. The law is constantly evolving, and the information on this website may not reflect the most current legal developments. Please note that reliance on this information does not establish an attorney-client relationship. While every effort has been made to ensure accuracy, the author and publisher assume no responsibility for any errors or omissions contained herein. Readers should always consult with a qualified attorney regarding their specific circumstances. Contacting us through this website, including any submission of information, does not create an attorney-client relationship, nor should it be construed as such. No attorney-client relationship will be established until a formal agreement is signed, and fees are paid. 

Jarosław Kurpiejewski

Jarosław Kurpiejewski

Partner | Adwokat LL.M.
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