H-1B Visa FAQs: Deadline Fast Approaching

As you may know, the H-1B “cap” filing period is rapidly approaching. The H-1B visa is an extremely sought-after option for professional-level foreign national employees. If you are considering filing an H-1B case this year, there are some crucial deadlines to keep in mind.

Below, we have answered some frequently asked questions relating to the H-1B visa and its elusive “cap”.

What positions qualify for H-1B visas?

H-1B visas are reserved for specialty occupations i.e. positions that require at least a Bachelor’s degree in a specific field. Examples of H-1B type positions include engineers, IT professionals, marketing analysts etc.

Is there a minimum salary requirement for H-1B visas?

An individual in H-1B status must be paid at least the prevailing wage (or actual wage if higher). The prevailing wage is determined by the job title and requirements; the location of the position; and, the number of hours per week.

What is the H-1B “Cap”?

H-1B visas are limited or “capped” in number each fiscal year. The annual cap for “new” H-1B visas is 65,000 with an additional 20,000 cap reserved for those with U.S. Master’s (or higher) degrees.

When does the H-1B cap open?

The cap opens on April 2nd this year and will likely remain open for just 5 days. Given the uncertainty with shipping/weather delays, we recommend filing all H-1B cap cases on April 2nd.

What is the H-1B “Lottery”?

As H-1B visas are limited in number, the demand generally outweighs the supply. Thus, the government conducts a random computer-generated lottery to see what cases will move forward for adjudication. In recent years, all cases received during the first 5 days in April were entered into the lottery.

When should I start preparing my H-1B case?

Given the pre-filing requirements such as EIN verification, Labor Condition Application approval etc. we recommend that you, your employer, and your immigration attorney get started straight away on this case. In any event, early March is likely the latest you could start preparing an H-1B cap case for filing under the April deadline.

When will I find out if my case has been selected in the lottery?

Regularly filed cases will probably not find out if they are selected until late May or even June. If premium/expedited processing is an option (it was not last year), those case filed with premium processing will likely be receipted late April.

Will premium processing increase my chances of getting selected in the lottery?

No, unfortunately, it will not. However, as attorneys get emailed receipt notices for premium processed cases, you will know sooner if your case has been selected in the lottery.

What if my case is selected in the lottery?

Congratulations will first be in order! Second, it’s important to note that just because your case was selected does not mean that it will be approved. Getting selected in the lottery just gives you the opportunity to have the USCIS review your case – it does not mean that your case will be approved. Thus, it’s critical that an experienced immigration attorney prepares and files the strongest case on your behalf.

If my case gets approved, can I start working straight away?

Unfortunately, no, you cannot. The earliest an H-1B cap case can take effect is October 1st, the start of the government’s fiscal year. While an H-1B case may be approved months ahead of that date, you cannot actually start working on your new H-1B until October 1st. If you want to work in advance of that date you must have other valid work authorization or valid student OPT cap gap (if applicable).

What if I don’t get selected in the lottery?

If your case does not get selected in the lottery, the government will refund all filing fees. We would recommend that you fully explore all other options to see if there might be a feasible alternative for you e.g. green card case, startup parole for international entrepreneurs, E-2 visa etc.

Disclaimer: This guide is intended for informational purposes only and does not constitute legal advice. Please contact McEntee Law Group directly for legal advice specific to your situation.

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