H-1B Cap Petitions refer to the Form I-129, Petition for Nonimmigrant Worker, submitted by companies in the United States on behalf of nonimmigrants. The H-1B Cap filing period begins on, or shortly after, April 1 each year, and generally ends when the U.S. Citizen and Immigration Services (“USCIS”) has received sufficient petitions to fulfill the H-1B numerical limitations: 65,000 visas for those with at least a U.S. bachelor’s degree or foreign equivalent, and an additional 20,000 visas for those with a U.S. master’s degree or higher.
USCIS routinely receives hundreds of thousands of H-1B Cap Petitions in early April each year. When USCIS determines that it has received a sufficient number of petitions to reach the annual H-1B allocations, it announces on its website the final receipt date on which petitioning employers may file an H-1B Cap Petition for that fiscal year. If the H-1B Cap is reached in the first five (5) days, USCIS conducts a lottery of the received petitions.
Revised Selection Process
USCIS recently revised the selection process for H-1B Cap Petitions. This year, USCIS will first randomly select a sufficient number of H-1B Cap Petitions to fulfill the numerical limitation for the bachelor’s cap; 65,000 visas. This selection will include all H-1B Cap Petitions, including those eligible for the advanced degree exemption. USCIS will then select from the remaining petitions a sufficient number of H-1B Cap Petitions to fulfill the numerical limitation for the advanced degree exemption; 20,000 visas.
USCIS believes that changing the order in which it has historically selected H-1B Cap Petitions will increase the number of beneficiaries with a U.S. master’s or higher degree to be considered for further processing under the H-1B Cap.
Approval and Change of Status in the United States
If USCIS approves a H-1B Cap Petition filed on behalf of a foreign national already in the United States in a different nonimmigrant classification, i.e., student, that individual may work for the petitioning employer until the expiration of the I-94 card or validity period on the H-1B approval notice, then must depart the United States to apply for a H-1B visa abroad.
Applying for a Visa Abroad
If USCIS approves a H-1B Cap Petition filed on behalf of a foreign national outside of the United States, that individual must submit a nonimmigrant visa application to the U.S. Department of State, attend an in-person interview before a consular officer, and pay the visa application processing fee, before seeking admission to the United States.
Period of Stay in the United States
A H-1B Worker may be admitted to the United States for an initial period of up to three (3) years. This time may be extended, but generally cannot go beyond a total of six (6) years.
Family of H-1B Visa Holders
The spouse and unmarried children under 21 years of age may seek admission to the United States in H-4 nonimmigrant classification.
If you have questions about the H-1B Cap, please contact Lally Immigration Services, LLC at (617) 870-1000 or by email to [email protected].
