Fariba Faiz Law Offices PC represents U.S. employers, startups, founders, and foreign professionals in H-1B matters, including cap-subject petitions, H-1B transfers, extensions, amendments, cap-exempt cases, beneficiary-owner petitions, Requests for Evidence (RFEs), and change-of-status and consular strategies.

With more than 28 years of immigration law experience, attorney Fariba Faiz advises companies and professionals in the San Francisco Bay Area and throughout the United States on H-1B sponsorship and related employment-based immigration matters. H-1B cases receive direct attorney involvement in case strategy, petition preparation, and responses to USCIS inquiries.

What Is the H-1B Visa?

The H-1B visa allows qualifying U.S. employers to employ foreign professionals in specialty occupations.

H-1B positions arise across many industries and professions, including technology, software engineering, data science, finance, engineering, architecture, biotechnology, healthcare, scientific research, and other occupations requiring specialized professional knowledge.

A successful H-1B petition must establish both that the offered position qualifies as a specialty occupation and that the foreign national possesses the education or other qualifications required for the position.

H-1B Specialty Occupation Requirements

Specialty occupation is often the central issue in an H-1B petition.

The position must require the theoretical and practical application of highly specialized knowledge and normally require at least a bachelor's degree or its equivalent in a directly related specific specialty.

A position does not necessarily have to require one particular academic major. Multiple fields of study may qualify when each has a logical connection to the duties of the position.

USCIS does not determine H-1B eligibility based solely on a job title. The petition should establish a coherent relationship among:

• The employer's business and operational needs

• The actual duties of the position

• The specialized knowledge required to perform those duties

• The degree field or fields related to that knowledge

• The beneficiary's education and qualifications

• The occupational classification and Labor Condition Application

This analysis can become particularly important for interdisciplinary, emerging, managerial, or highly specialized positions that do not fit neatly within a traditional occupational category.

Who May Qualify for H-1B Status?

H-1B sponsorship may be appropriate for:

• Foreign professionals with qualifying U.S. or foreign degrees

• F-1 students transitioning from OPT or STEM OPT

• Current H-1B professionals changing employers

• H-1B employees seeking extensions or changes in employment

• Professionals changing from another nonimmigrant status

• Employees of qualifying cap-exempt organizations

• Startup founders and beneficiary-owners who will work in qualifying specialty occupations

A foreign degree may require a credential evaluation establishing its equivalency to an appropriate U.S. degree. In some cases, qualifying education, specialized training, or progressively responsible experience may also be relevant to establishing the beneficiary's qualifications.

The H-1B Cap and Registration Process

Most new private-sector H-1B petitions are subject to an annual numerical limit.

The regular H-1B cap is 65,000, with an additional 20,000 numbers available under the U.S. advanced-degree exemption for qualifying beneficiaries.

USCIS generally requires employers seeking cap-subject H-1B workers to participate in an electronic registration process. The current selection system is beneficiary-centric, meaning selection is based on unique beneficiaries rather than providing additional selection opportunities simply because multiple registrations were submitted for the same individual.

USCIS announces registration dates, selection procedures, and petition filing periods for each fiscal year. Employers should therefore plan around the requirements announced for the particular H-1B cap season rather than relying on prior-year deadlines.

Cap-Exempt H-1B Petitions

Not every H-1B petition is subject to the annual cap.

Potential cap-exempt cases may involve institutions of higher education, qualifying nonprofit entities related to or affiliated with institutions of higher education, nonprofit research organizations, governmental research organizations, and certain beneficiaries performing qualifying work connected with cap-exempt organizations.

A beneficiary who was previously counted against the H-1B cap may also be eligible for subsequent H-1B employment without participating in another cap selection process, depending on the circumstances.

Cap exemption is fact-specific. Nonprofit status by itself does not necessarily make an employer cap-exempt.

H-1B Visas for Founders and Beneficiary-Owners

H-1B classification may be available to entrepreneurs who own an interest in the company petitioning for them.

Current H-1B regulations expressly address petitions in which the beneficiary has a controlling interest in the petitioning business. These cases can provide an important immigration option for founders, but they remain subject to H-1B requirements, including the existence of a bona fide specialty occupation position.

A founder or beneficiary-owner H-1B petition may require careful documentation of:

• The company's business and operations

• The beneficiary's ownership interest

• The actual position to be performed

• The specialty occupation nature of the position

• The beneficiary's qualifications

• The terms and conditions of employment

Special rules apply to certain H-1B petitions involving beneficiaries with a controlling interest, including limitations on the validity periods of qualifying beneficiary-owner petitions.

For entrepreneurs, H-1B should also be evaluated against other potentially available immigration strategies, including O-1, L-1, E-2, EB-1A extraordinary ability, and EB-2 National Interest Waiver, depending on the individual's background, nationality, business structure, and long-term objectives.

F-1 OPT to H-1B

H-1B sponsorship is a common next step for international students working pursuant to F-1 Optional Practical Training or STEM OPT.

These cases require careful attention to timing, including the H-1B registration process, OPT expiration, change-of-status eligibility, international travel, and the anticipated H-1B start date.

Eligible F-1 students may also benefit from H-1B cap-gap provisions that can extend F-1 status and, in qualifying circumstances, employment authorization during the transition to H-1B status.

Because eligibility depends on the particular filing and immigration history, cap-gap strategy should be evaluated before the employee's existing employment authorization expires.

H-1B Transfers and Changing Employers

A professional already in H-1B status may be able to change employers without returning to the annual H-1B cap selection process.

The new employer files its own H-1B petition, commonly referred to as an H-1B "transfer" petition.

Under the H-1B portability provisions, certain eligible H-1B workers may begin employment with the new employer after a qualifying, nonfrivolous petition has been properly filed rather than waiting for USCIS approval.

Whether an individual can begin employment immediately requires review of the person's current status, immigration history, prior H-1B employment, and the circumstances of the new filing.

H-1B Extensions and Amendments

H-1B status is generally granted for periods of up to three years, subject to applicable statutory and regulatory limitations. Certain H-1B workers pursuing employment-based permanent residence may qualify for extensions beyond the usual six-year limit.

An amended H-1B petition may also be required when material aspects of approved employment change.

Potential issues include:

• Changes in work location

• Material changes in job duties

• Changes affecting occupational classification

• Significant changes in the terms and conditions of employment

• Certain corporate restructurings

Not every employment change requires an amended petition. Employers should evaluate material changes before implementing them whenever possible.

H-1B Requests for Evidence and Notices of Intent to Deny

USCIS may issue a Request for Evidence when the initial record does not sufficiently establish H-1B eligibility. More serious concerns may result in a Notice of Intent to Deny.

Issues raised in H-1B adjudications may include:

• Whether the position qualifies as a specialty occupation

• Whether the required degree fields are sufficiently related to the duties

• Whether the beneficiary possesses the required qualifications

• Whether a bona fide specialty occupation position exists

• Third-party placement or project documentation

• Employer operations and business activity

• Maintenance of lawful nonimmigrant status

• Prior employment or payroll issues

• Inconsistencies among the petition, Labor Condition Application, supporting evidence, and underlying facts

An effective RFE or NOID response should identify the precise legal and evidentiary issue raised by USCIS and address it with targeted evidence and legal analysis. Submitting more documents is not necessarily the same as submitting better evidence.

Where possible, foreseeable weaknesses should be identified and addressed before the initial petition is filed.

Third-Party Worksites and Consulting Arrangements

H-1B cases involving work at a client or third-party location can present additional evidentiary issues.

Depending on the circumstances, relevant documentation may include contracts, statements of work, project documentation, descriptions of the beneficiary's assignments, and evidence establishing the professional requirements of the position.

The petition, supporting evidence, worksite information, and certified Labor Condition Application should present a consistent description of the proposed employment.

H-1B Change of Status and Consular Processing

Approval of an H-1B petition and acquisition of H-1B status are related but distinct issues.

For beneficiaries already in the United States, an H-1B petition may request a change or extension of nonimmigrant status when the applicable requirements are satisfied.

Other beneficiaries may obtain approval of the H-1B petition and then apply for an H-1B visa at a U.S. consulate abroad before seeking admission to the United States.

Maintenance of status, previous employment authorization, international travel, visa history, and timing can affect which strategy is appropriate.

H-1B and Employment-Based Green Card Planning

H-1B is a temporary nonimmigrant classification, but H-1B status can be maintained while an employer or foreign national pursues lawful permanent residence.

Depending on the circumstances, longer-term options may include:

• PERM labor certification followed by EB-2 or EB-3 sponsorship

• EB-2 National Interest Waiver

• EB-1A extraordinary ability

• EB-1B outstanding professor or researcher

• EB-1C multinational manager or executive

Early permanent residence planning can be particularly important for professionals affected by employment-based immigrant visa backlogs and for H-1B workers approaching the normal six-year limitation.

H-1B Legal Services

Fariba Faiz Law Offices PC represents employers and professionals in:

• H-1B cap registration and filing strategy

• New cap-subject H-1B petitions

• Cap-exempt H-1B petitions

• H-1B founder and beneficiary-owner petitions

• F-1 OPT and STEM OPT transitions

• H-1B transfers and portability

• H-1B extensions and amendments

• Change-of-status and consular processing matters

• H-1B RFEs and NOIDs

• H-1B and permanent residence planning

Frequently Asked Questions About H-1B Visas

Can I change employers while in H-1B status?

Yes, in many cases. The new employer must file its own H-1B petition. Certain eligible H-1B workers may begin working for the new employer after a qualifying petition has been properly filed rather than waiting for approval. The individual's immigration history and eligibility for H-1B portability should be reviewed before employment begins.

Can a startup founder obtain an H-1B through a company the founder owns?

Potentially. Current H-1B regulations permit qualifying beneficiary-owner petitions, including cases involving a controlling ownership interest. The petitioning company, offered position, and beneficiary must independently satisfy the applicable H-1B requirements, and special rules apply to certain beneficiary-owner petitions.

What happens if an H-1B candidate is not selected in the cap process?

Depending on the individual's circumstances, alternatives may include participating in a future H-1B cap season, cap-exempt H-1B employment, O-1, L-1, TN, E-2, E-3, or another immigration classification. The appropriate strategy depends on nationality, qualifications, immigration history, the proposed employment, and the employer's circumstances.

Does an H-1B employer also have to sponsor the employee for a green card?

No. H-1B sponsorship and permanent residence sponsorship are separate processes. Many employers nevertheless begin PERM or another employment-based permanent residence strategy while an employee is working in H-1B status.

What is H-1B premium processing?

Premium processing provides expedited USCIS processing for eligible H-1B petitions. It requires USCIS to take specified adjudicative action within the applicable premium-processing period; it does not guarantee approval of the petition.

When is an amended H-1B petition required?

An amended petition may be required when there is a material change in the terms or conditions of H-1B employment, including certain changes in work location or job duties. Whether a particular change requires an amendment depends on the facts.

H-1B Immigration Counsel for Employers and Professionals

H-1B cases increasingly require more than completing forms and documenting a degree. Specialty occupation analysis, wage and LCA compliance, maintenance of status, corporate structure, work location, beneficiary ownership, and long-term immigration objectives can all affect the appropriate filing strategy.

Fariba Faiz Law Offices PC advises U.S. employers, startups, founders, and foreign professionals on H-1B petitions and related employment-based immigration strategy.

Schedule a consultation to discuss an H-1B petition, transfer, extension, RFE, beneficiary-owner case, or related employment-based immigration matter.

Schedule a confidential consultation: Calendly - Fariba Faiz

Disclaimer: This page provides general information and does not constitute legal advice. Immigration outcomes depend on the specific facts and law applicable to each matter.