Frequently Asked Questions on the H-1B Cap

Immigration Sponsorship photo

By Grant W. Godfrey, Immigration Attorney

We have assembled the following FAQ to help employers, and their employees, understand the implications if the H-1B Cap is reached quickly.

What is an H-1B Visa?

The H-1B visa is the standard working visa used by foreign nationals to work in the United States with a U.S. employer. The H-1B “specialty worker” visa is available only to foreign nationals who have obtained a job offer in a position that customarily requires someone with a Bachelor’s degree.

Why is the H-1B Visa so popular?

It is a relatively flexible visa category, and has several incentives in place for workers who are in the process of being sponsored for an immigrant visa (otherwise known as a “green card”).

What is this H-1B Cap that I keep hearing about?

Congress has limited the number of new H-1B visas that can be issued in any given year. As a general matter, they are given out in two primary tranches — 20,000 visas for foreign nationals with a U.S. earned Master’s (or higher) degree and an additional 58,200 visas for foreign nationals who qualify generally for the H-1B (by having a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to at least a Bachelor’s degree). Our prior Alert provides information regarding the H-1B Cap, who is subject to it, and how foreign workers are able to qualify for it.

I’ve heard that this year’s cap could be reached very quickly, even on the first day; does this mean that my petition has to be received on April 1st for it to be included in this year’s Cap?

No, CIS is required to keep each of the H-1B caps open for a minimum of five business days. Assuming one or both of the H-1B caps are reached in that period, so as long as your petition is received by Tuesday, April 7th your petition will be included in the lottery(ies) discussed next.

What happens if both of the H-1B Caps are reached on April 7th?

CIS will hold two random lotteries to select which H-1B petitions will be accepted for processing. The first lottery will be for petitions qualifying for the 20,000 visas for those holding a U.S. earned Master’s (or higher degree). Any petition not selected will then be added to the general pool for the 58,200 visas that generally qualify for H-1B visas, and CIS will hold a lottery for those petitions.

Will filing for premium processing service increase my odds in the lottery(ies)?

No. Petitions requesting premium processing service will not receive any preferential treatment. Premium processing allows petitioners to receive an initial determination within 15 days. This service costs $1,225. Note that CIS has issued a press release stating that the 15-day premium processing “clock” for H-1B cap cases won’t start until May 11, 2015.

When will I know if the H-1B Cap was reached during the first week?

Last year, the minimum five business day period ended on April 7th. CIS announced that the caps had been reached the same day. We expect this year they will announce it either on the same day that the cap has been reached, or within the next couple of business days.

If either or both of the H-1B Caps are reached during the first week, then when will CIS hold the lottery?

As discussed above, last year the minimum five business day period ended on April 7th. CIS announced that the caps had been reached on April 7th, and held the lotteries on April 10th. As a result, we expect this year’s lottery to be held within a few business days of CIS announcing that the cap has been reached. Note that in prior years, it has sometimes taken a week or two for CIS to run the lottery(ies).

What will happen if the H-1B Cap was not reached during the first week?

Once the mandatory five business days have passed, CIS will stop accepting cases for the appropriate H-1B Cap on the day after it has received enough petitions to reach the relevant cap. All petitions received on the final day will be subject to a lottery for the numbers that are remaining. H-1B cap cases received after the final day will be rejected.

Assuming the H-1B Caps are reached during the first week, when will I know if my petition has been accepted for processing?

Unfortunately there is not a good way to quickly determine whether a petition has been accepted for processing. Last year, CIS announced that it would first send Receipt Notices for cases accepted in the lottery and only after all of the Receipt Notices had been issued would they send out rejected filing packages. Again, last year, Receipt Notices were still being received in the first week of May and it was only after the first week in May that we started to receive rejected filing packages. As a result, we project this year that you won’t know definitively whether your case was rejected until the first or second week of May or later.

What are my options if my petition is rejected?

You may still have options available to you, but they are very fact specific, so we would recommend that you speak with an experienced Immigration Attorney to see if there are any alternatives.

Updated: April 1, 2015

For more information, or to ask a specific question regarding the H-1B Visa Cap, please contact Grant Godfrey.