By: Min Kim
The H-1B visa cap process can be overwhelming if you’re getting sponsored for the first time. During this video, we provide an overview of the fiscal year 2023 H-1B cap process just in time for H-1B cap season. We cover:
- Requirements for an H-1B visa.
- How much an H-1B employee must be paid.
- What to expect from the registration and selection process.
- Filing an H-1B cap-subject petition.
- Changing status to an H-1B versus consular processing.
- How to manage cap-gap for F-1 visa holders.
- International travel while your H-1B petition is pending.
- What to do if you are not selected in the lottery.
- And more.
Requirement for h-1b employees
There are three main requirements for an H-1B visa:
- The job must require at least a bachelor’s degree in a specific field. For example, a software engineer position would require at least a minimum a bachelor’s degree in computer science or a related field.
- The prospective H-1B employee must have the same educational and/or experience background that the job requires.
- The sponsoring company must meet Department of Labor (DOL) regulations related to wages and working conditions.
Labor condition application (LCA)
In general, one of the first items to complete for any H-1B petition is filing the Labor Condition Application (LCA) with the DOL. In the LCA, the DOL requires that employers pay the H-1B worker the higher of two wages:
- The prevailing wage, set by DOL, is the average wage paid to workers in similar jobs in the same geographic area.
- The actual wage is what the employer pays to other employees in similar roles at the same location.
Both wages are based on the position’s metropolitan area. For example, if the position is based in Oakland, California, the wages would be based according to similar occupations in the greater San Francisco area.
The employer must pay their H-1B employee the higher of the prevailing wage or the actual wage.
What does h-1b cap mean?
There is a numerical limit, or “cap,” to the number of H-1B visas that are available each fiscal year. This cap is set by Congress. Each fiscal year, 85,000 H-1B visas are available, with 20,000 of these reserved for foreign nationals with a US master’s degree or higher from a qualifying accredited institution.
Normally, there is more demand each year than there are new H-1B visas available. So United States Citizenship and Immigration Services (USCIS) runs a randomized lottery to select H-1B registrants. Employers are eligible to file an H-1B petition for individuals that are selected in the lottery.
As with previous years, there will be a lottery in 2022.
how does the h-1b lottery work?
The H-1B lottery is run through an online pre-registration system. This system has not changed from last year.
USCIS will open the registration system from March 1, 2022 at 12 PM Eastern Time through March 18, 2022 at 12 PM Eastern Time.
During this time, your employer will register any foreign nationals that they plan to sponsor for a cap-subject H-1B visa.
It is important to note that USCIS will automatically disqualify any duplicate registrations filed by the same company for the same individual. Your employer or their respective attorney will register you for the lottery. Therefore, you must not try to register for yourself at any time.
USCIS will run the lottery and electronically notify employers of selected cases by March 31, 2022.
h-1b Lottery selection and petition filing
Chugh, LLP will coordinate with your employer to notify you about your selection status. If your case is selected, your employer will have 90 days to file the full H-1B petition on your behalf. H-1B petitions will be due no later than June 30, 2022.
If your case is selected, your employer will work with Chugh, LLP to prepare the H-1B cap petition filing. You will be contacted to provide updated documentation, such as pay statements.
Chugh, LLP will file the petition with USCIS and provide updates regarding things like the receipt notice, whether there’s a request for further evidence, and of course the outcome of your case.
premium processing for your h-1b petition
It is not yet fully known whether premium processing or two-week expedited service will be available this year. Last year, the option to premium process an H-1B cap petition was available, but in previous years, USCIS has suspended these services. Our team will let you know if filing with premium processing will be available again this year.
how to file an h-1b petition
An H-1B petition can be filed in one of two ways.
The first method is to file with a request for change of status. Chugh, LLP will request that your H-1B status take effect automatically on October 1, 2022, if your petition is approved by that time.
If your H-1B cap petition is approved after October 1, you would enter H-1B status automatically on the date that your petition is approved.
Let’s say you are in F-1 status and your H-1B cap petition is approved prior to October 1, 2022. On October 1, 2022, you would automatically have H-1B status in USCIS systems, and you would not need to take any additional action.
Change of status is very important for individuals on F-1 status who need cap-gap work authorization protection. We cover cap-gap in more detail below.
To qualify for change of status, you must be physically present in the US when the H-1B cap petition is filed and you must remain in the US until the H-1B cap petition requesting change of status is approved.
Leaving the US before USCIS makes a decision on your H-1B cap petition for change of status will result in request being denied. Therefore, in most cases, you should not travel internationally until after October 1, 2022.
This rule can be complex, so please contact your Chugh, LLP legal professional for specific questions.
The second way to obtain an H-1B is called consular notification. This means that your company will ask for your H-1B petition to be approved but not activated until you take further steps.
Once your petition is approved, you would need to travel internationally, apply for and obtain an H-1B visa stamp at a US consular post, and then re-enter the US using your new H-1B visa.
Canadian citizens are visa exempt. They can apply directly at the border or through pre-flight inspection for re-entry in H-1B status.
If you need to travel abroad while your H-1B cap petition is pending, you may need to notify the US consulate. If traveling abroad, you must have another underlying visa status that is valid through October 1, 2022 or later while your petition is pending approval.
Consular notification is also required if you will be outside the US when your H-1B cap petition is filed or if you must depart the US while the H-1B cap petition remains pending.
Based on your specific situation, your Chugh, LLP attorney and employer will work with you to develop your best strategy and assess any other risks you could have related to international travel.
cap-gap for f-1 visa holders
Cap-gap is designed for individuals in F-1 status whose work authorization, whether optional practical training (OPT) or STEM OPT, expires after April 1, 2022 but before September 30, 2022.
Under cap-gap, you can automatically bridge the gap between when your F-1 work authorization expires and October 1, 2022, if:
- You are selected in the lottery,
- The H-1B cap petition filed for you requests a change of status from F-1 to H-1B, effective October 1, and
- This H-1B cap petition is filed prior to your employment authorization document (EAD) expiration date.
Once your H-1B cap petition is filed, you would provide your school with the receipt notice. They can then issue you an updated Form I-20 with cap-gap endorsement through September 30, 2022. You will receive an “additional EAD” card, but proof of cap-gap comes from the new updated Form I-20 for cap-gap endorsement from your school.
You do not need to take any additional action to be granted cap-gap. However, to become eligible for cap-gap, the H-1B cap petition for you must be filed requesting a change of status and it must be filed prior to the date your OPT EAD or STEM OPT EAD expires.
Cap-gap is valid through September 30, 2022. You may still face a gap in work authorization if your H-1B cap petition is not approved by then. If you are at risk of losing work authorization, your Chugh, LLP attorney will coordinate with your employer to mitigate the situation.
what if you are not selected in the h-1b lottery?
If your case is not selected in the lottery, this does not mean your case was denied or refused. Moreover, recent history has revealed that USCIS may run a second or even a third lottery later in the same fiscal year if USCIS determines that they have not received enough cap-subject H-1B petitions to fill the 85,000 visas available for that fiscal year. For example, USCIS ran two additional H-1B cap lottery selections last year.
Ultimately, even if your H-1B cap registration is not selected, it should not impact your eligibility for other US visas in the future. For example, your employer may choose to sponsor you again next year in the H-1B cap lottery.
If this year is your last chance to get an H-1B cap visa, Chugh, LLP will work with you and your employer to explore next steps. This could apply to you if, for example, your F-1 student work authorization expires this year and you do not have other visa options.
Thank you so much for joining us for this H-1B visa cap overview. Please contact your Chugh, LLP immigration professional for case-specific questions and further assistance.
Disclaimer: This video is intended as a general overview of the H-1B cap process. It does not provide legal advice for your specific case, and it does not create an attorney-client relationship.