H-1B Visa Cap
Some FAQs Below
As you may know, the H-1B “cap” filing period is rapidly approaching in April. The H-1B visa is an extremely sought-after option for professional-level foreign national employees. If your company is considering filing an H-1B case for employees this year, there are some crucial deadlines & things 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 a Department of Labor database using the job title and requirements; the location of the position; and, the number of hours per week. The actual wage is the wage paid to similarly situated employees. Your immigration attorney should advise you on the specific wage requirements as they are preparing the case.
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 1st 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 1st.
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 random lottery.
When should I start preparing the H-1B case?
Given the pre-filing requirements such as EIN verification, Labor Condition Application approval etc. we recommend that the employer and its immigration attorney get started straight away. 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 we find out if the case has been selected in the lottery?
We will probably not know the results of the lottery 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/early May.
Will we be able to premium process the case? If so, will it increase the chances of getting selected in the lottery?
Last year, the USCIS suspended premium processing for cap cases and later for all H-1B case. It’s unclear if they will reinstate premium processing this year. Regardless, filing a case with premium processing will not increase the chances of getting the case selected in the lottery. However, as attorneys get emailed receipt notices for premium processed cases, we will know sooner if the case has been selected in the lottery and thus may help to relieve some of the anxiety associated with the H-1B cap.
What if the case is selected in the lottery?
Congratulations will first be in order! Second, it’s important to note that just because a case was selected does not mean that it will be approved. Getting selected in the lottery just gives us the opportunity to have the USCIS review and adjudicate it. Thus, it’s critical that you use an experienced immigration attorney to prepare and file the strongest case possible.
If the case gets approved, can the employee start working straight away?
Unfortunately, no. Assuming the case gets approved, 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, the employee cannot actually start working on the 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 the case does not get selected in the lottery?
If the 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 even in advance of filing the H-1B cap case to see if there might be a feasible alternative for your employee e.g. green card case, O-1 visa, E-2 visa etc. At McEntee Law, we like to say “don’t put all your eggs in the H-1B basket”. We’re actively pursuing Plan B strategies for our clients even in advance of filing new H-1B cap cases.
I’ve heard about some new changes to the H-1B cap system, what are they?
The Administration has implemented 2 main changes to the H-1B program.
The first involves a pre-cap registration whereby employers would have to register candidates online for H-1B visas a full two weeks before the traditional application deadline of April 1st. Note that the implementation of this part of the new rule is being delayed until April 2020.
The second change, which takes effect this year, involves the USCIS reversing the order of selecting the H-1B cases by conducting the regular lottery first and the Master’s lottery second. This will essentially give further preference to those with US Master’s (or higher) degree by increasing their chances of getting an H-1B cap number. It’s unclear if this new rule will be challenged in court but please stay tuned for further updates and be sure to follow our Managing Attorney, Fiona, @USVisaLawyer on Twitter for real time updates! We’ve also launched a series of mini videos on the H-1B visa so take a look at those for some quick info on this process.
Contact us on info@mcenteelaw.com for assistance with any H-1B cap cases or Plan Bs.
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McEntee Law Group is an established practice that specializes in all types of U.S. immigration law. While we are based in Chicago, given the federal nature of immigration, we have clients all throughout the U.S. Our Managing Partner, Fiona, originally from Dublin, has been practicing immigration law exclusively for over 11 years, and is an award-winning national/international media commentator on immigration issues.
