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H1B Cap

What is the H1B Cap? 

The United States government limits the number of H1B visas issued each year to 65,000. H1B applicants who have earned an advanced degree equivalent to a U.S. master’s degree or higher are exempted from this cap. However, those with advanced degrees are subject to their own annual cap of 20,000.

Additionally, 6,800 of the 65,000 visa-cap are reserved specifically for the H1B1 visa. If there are any unused H1B1 visas remaining at the end of the selection process, those unused visas will be rolled over into the next year and added to the H1B cap for that year. This means there can be more than 65,000 H1B visas available in a given year. 

Cap Exemptions

Applicants seeking an H1B visa to perform labor or services in the Commonwealth of the Northern Mariana Islands and Guam may be exempt from the H1B cap if their employers file the petition before December 31, 2029. 

Additionally, the USCIS exempts certain other employers and employees from the cap. 

Employers exempted from the cap include: 

  • higher education institutions 
  • non-profit organizations associated with higher education institutions 
  • non-profit research organizations or government research organizations
  • any for-profit company that seeks to hire a specialty employee to provide services to an institution or organization mentioned above.

Employees exempted from the cap include: 

  • individuals who have previously been granted exemption to the cap. 

An employer may also file a cap-exempt H1B petition for an employee if the employee previously held H1B status in the United States and the employee has not used his or her six years of status. The petition would cover the remaining time the employee is allowed in the U.S. An individual must file a petition subject to the cap if he or she has been out of the U.S. for 1 year. 

Employees who gain different employment by transferring from one employer to another may be exempt from the cap, depending on the cap-exempt status of the employee, the employer, and the new employer. 

Registration Period Timeline

The initial registration period is generally around 14 days long in the month of March each year. For example, the initial registration period for 2022 begins on March 1st; however, accounts can begin to be created on February 21st, before registration officially opens. The initial registration period ends March 18th, 2022. 

Below is the full 2022 registration period timeline: 

    • February 21st: Petitioners and registrants can start creating H1B registrant accounts at 12pm U.S. eastern standard time. 
    • March 1st: H1B registration period opens at 12pm U.S. eastern standard time. 
    • March 18th: H1B registration period closes at 12pm U.S. eastern standard time. 
  • March 31st: The USCIS will notify selected registrants
  • April 1st: Selected registrants may file their petitions on this date.

The USCIS may open additional petition filing periods in 2022 if there are remaining unused H1B visas after the initial lottery selection. In 2021, the USCIS had an unexpected three filing periods. So, registrants should continue monitoring their selection status throughout the year and keep an eye out for USCIS updates about additional filing periods.

Avoid Duplicate Beneficiaries 

Due to the limit placed upon the amount of H1B visas that are issued each year, some petitioners may believe that they can improve their chances of being selected for an H1B visa by submitting multiple registrations for each petitioner. However, doing this would be a mistake. 

Petitioners are only permitted to submit one registration per beneficiary per year. If a petitioner has submitted more than one registration for the same beneficiary, the USCIS will delete all submissions by the petitioner from the selection process, removing all possibility that the petitioner may be selected in the lottery.

Separate petitioners or their representatives may submit registrations for the same beneficiary. But, each petitioner or representative may only submit one registration each for that beneficiary. 

Petitioners and attorneys should coordinate with each other to ensure there are no improper duplicate registrations for a beneficiary. If duplicate registrations are discovered before the initial registration period comes to a close, the extra submissions may be deleted by the petitioner or representative until there is only one registration for the beneficiary. However, the $10 registration fees will not be refunded. There is no way to correct duplicate registrations after the initial registration period has closed. 

Multiple Selection and Filing Periods

The USCIS will conduct multiple selection and filing periods or “rounds,” if there remains unused H1B visas subject to the cap. This can occur if there are remaining unused H1B visa after the initial selection and filing periods. For example, remaining unused visas will be available within the annual cap if registrants selected in previous periods failed to file a petition for the H1B after being selected or if their petition was ultimately not approved.

Generally, after the filing period for selected registrants concludes, the USCIS will determine whether the H1B cap has been met. The USCIS may select additional registrants and open additional filing periods until the cap is met. There is no precise amount of filing periods or “rounds” the USCIS will conduct in a given year. The amount of filing periods depends on the availability of unused H1B visas under the annual cap. For example, in 2021, the USCIS had an unexpected total of three filing periods.

What if Your H1B Registration is Selected in the Lottery?

H1B petitions can only be submitted by individuals who are selected through the lottery. Selected registrants will file Form I-129, Petition for Nonimmigrant Worker with the USCIS. Registrants who are selected in the lottery will receive a Registration Selection Notice, which shows the specific filing period and filing location for their H1B petition. The USCIS website will otherwise provide this information in the event the registration requirement is suspended.

Registrants must wait until six (6) months from the employment start date requested for the H1B applicant to file their H1B petition. USCIS will not accept petitions submitted over six (6) months from the employment start date. Furthermore, both H1B cap petition and advanced degree exemption petition must include an employment start date that is October 1st, 2022 or later. The petition must include such a date or it will be rejected or denied. Non-specific employment start dates, such as “as soon as possible” will also be rejected. 

Does Premium Processing Improve My Chances of Being Selected? 

Some applicants may think that premium processing will improve their likelihood of being selected in the H1B lottery; however this is a mistaken belief. In fact, premium processing has limited benefits for the H1B visa. 

Even though premium processing is expensive, at $2,500, it does not improve an applicant’s chances of being selected in the H1B lottery. Moreover, while premium processing is intended to expedite the processing of Form I-129 to a 15-day timeframe, it will not necessarily allow the H1B applicant to begin working any sooner than if they did not choose premium processing. This is because applicants cannot begin working until October 1st, 2022 or later. Thus, even if an applicant elected to have their Form I-129 petition processed in 15 days using premium processing, the applicant will still need to wait until at least October 1st, 2022 or later to begin work. 

There are some situations where premium processing may be useful to an applicant. For example, if the petitioner is issued a Request for Evidence (RFP) by the USCIS, this will undoubtedly prolong the petition’s approval. The petitioner can select premium processing in order to reduce the delay caused by the RFP. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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