Temporary Visas

H-1B Visas

H1-B Visa Overview and Requirements

What is an H-1B?

A U.S. employer can sponsor a foreign worker for H-1B status based on an offer of employment in a “professional specialty occupation” to any worker who holds an appropriate degree for the job offered, or a combination of education and progressive work experience in the specialty equivalent to the relevant degree.

A “professional specialty occupation” is defined by regulation as one that requires at least a 4-year Bachelor’s degree in an academic field directly related to the job duties, or its equivalent through education and experience combined, as a baseline minimum for entry-level employment in that occupation. To qualify as an H-1B position, that related-degree requirement must normally apply both to the occupation in general, and also to the specific position offered by the sponsoring employer. Examples of jobs that normally require a directly-related Bachelor’s or higher degree as a minimum for entry-level employment in the professional occupation across all industries and types of employers include engineers, graphic designers & financial analysts. Examples of jobs that clearly do NOT qualify for H-1B classification include real estate brokers, and sales positions across all industries. A compensation package that includes commissions is a dead giveaway that it is not an H-1B job.

Degree Equivalency: Foreign degrees must be evaluated by a U.S.-based credentials evaluation service to determine whether they are equivalent to a U.S. bachelor’s degree or higher. Work experience in the field in lieu of higher education is evaluated at 3:1, i.e. 3 years of full-time work in progressively responsible positions is deemed equivalent to one year of college education. Where work experience is substituted for some or all formal education, an equivalency evaluation acceptable for H-1B purposes may not be accepted for immigrant visa purposes.

The employer must offer a wage to the professional worker at or above the prevailing wage for U.S. workers employed in that geographic area in similar jobs. The appropriateness of the wage to the offered job and location must be confirmed with the Department of Labor through the filing of a Labor Condition Application.

**For any visa category that requires an LCA (H-1B, H-1B1, E-3), it is critical for the US employer to pay the bulk of legal fees and expenses, and not seek to recoup them from the worker via salary deduction or otherwise. Payment of legal costs by the sponsored worker is deemed an indicator of fraud by USCIS, and the Department of Labor will deem any such amounts subtracted from the actual salary, which will reduce the salary below the wage amount stated on the LCA, and this can lead to fines and other violations, up to & including debarment from the H-1B program.

The professional worker cannot be an independent contractor! All H-1B, H-1B1, and E-3 workers in professional specialty occupations must be paid the offered wage as a salaried W-2 employee, with all payroll taxes withheld: any amounts paid as commission, discretionary bonus, reimbursed expenses, or non-employee compensation do not count toward satisfying the wage obligation, per Department of Labor regulations.

Any questions about whether a job offer is in a professional specialty occupation, or whether the worker’s education is sufficiently related to the nature of the offered job, should be discussed with counsel on a case-by-case basis.

More H-1B Cap Information:

Have more questions about H-1B visas? Contact Karin Wolman for a consultation today!

The Annual Cap

H-1B Cap Explained

The “H-1B cap” is the annual numerical limit on new H-1B petitions that may be granted within a fiscal year to those who do not already hold this visa status, set by the statute at Section 214(g) of the Immigration & Nationality Act, and not updated since 1990. The unrestricted “regular cap” is 65,000 new H-1Bs per fiscal year, and the additional “U.S. Master’s cap” of another 20,000 per fiscal year is reserved for workers who earned U.S. graduate degrees from accredited, non-profit institutions of higher education. Graduate degrees earned at for-profit or unaccredited schools do not count toward the US Master’s degree cap; nor do graduate professional certificate programs.

H-1B Fiscal Years

FY2024: MyUSCIS opened for creation of new “Registrant” accounts by employers at noon Eastern time on February 21. The electronic H-1B cap lottery registration period ran from noon on March 1 to noon March 17, 2023. First-round H-1B Cap selection notification emails went out starting on March 25. By March 27, USCIS announced they had reached the cap, but did not reveal the total number of registrations received in the electronic lottery. Employers whose registrations were selected may file H-1B petitions for those workers in the 90-day period beginning on April 1.
FY2022: In its second year, the electronic pre-registration process hit its stride, running the electronic registration process from March 9 to March 25, 2021, and notifying selected registrants by March 31. USCIS received a total of 308,613 registrations, from which 87,500 were selected in the first round, eligible to file petitions in a 90-day window beginning April 2. Given the gap between registrations selected and the actual number of H-1B petitions filed, plus some filings rejected or denied, USCIS announced a second round of 27, 717 additional H1B cap selections from the cap lottery on July 29, 2021, and then a third round on November 19, 2021, each followed by a 90-day petition filing window.
FY 2021: The electronic pre-registration process was introduced for the H-1B cap lottery, sparing those not selected from the expense and burden of preparing and filing petitions. Instead of requiring cap-subject petitions to be filed in the first five business days of April, winners selected for processing had a span of 90 days in which their petitions could be filed for cases selected in the initial round. This system also allows graduating F-1 students to file petitions based on degrees conferred in May.
FY 2020: Premium processing was unavailable for all H-1B cap cases filed in April 2019, and the order of the selection lottery was reversed: they ran the Master’s cap lottery first.
FY 2019: Premium processing was unavailable for cap-subject H-1B cases, and the cap was oversubscribed in the first week of filing. On April 6, 2018, USCIS announced they had received a total of 190,098 H-1B petitions against the available cap quota of 85,000 (65,000 regular + 20,000 U.S. Master’s degree cases). On May 15, 2018, USCIS announced it had completed issuing receipts for cap-subject H-1B cases, and would begin returning petitions not accepted for processing under the cap.

H-1B Cap Qualifying Entities

A regulation was published on March 24, 2008, to make the H-1B cap-subject petition filing process fairer, but this process was before USCIS instituted the electronic registration & selection lottery.

The initial filing window was five business days, beginning on April 1, or on the first business day of April if the 1st falls on a weekend. All H-1B petitions received at USCIS Service Centers during that period were entered into a random selection lottery, but really two lotteries, one for holders of U.S. Master’s degrees from a non-profit accredited school, and a second one for all remaining cases. Cases selected were receipted & filing fee checks were cashed. Cases not selected in the lottery were rejected and eventually (around late June/early July) returned by regular mail to petitioners or their attorneys, with all supporting documents and filing fees.
Duplicate filings prohibited. If any employer files more than one H-1B petition for the same foreign worker, even for different jobs, or one under the Master’s cap and one under the regular cap, then both petitions were denied, not rejected.
Initial receipts were pre-screened to identify which cases were attributable to the Master’s cap and which cases to the regular cap, and to flag any duplicates by the same employer for the same worker.
Cap-exempt cases are also affected: documentation must be presented with the initial petition filing to support the claim that either the petitioner or the job is H-1B cap-exempt; cases making incorrect claims to H-1B cap-exemption are to be denied, not rejected. Cases cap-exempt due to the nature of the employer must be filed with the California Service Center, regardless of where the job is located.

Are there any other categories that add more visa numbers to the H-1B cap?

No, not for the general applicant pool. As noted above, within the existing cap, 6,800 visa numbers are set aside for use by H-1B1 nationals of Chile and Singapore, pursuant to Free Trade agreements between those two countries and the United States. This reduces the number in the general H-1B pool to 58,200. Unused H-1B1 visa numbers allocated to Chile and Singapore are added back to the general pool of H-1B visa numbers for the next fiscal year, but must be used within the first 45 days of the next fiscal year. Because this Chile/Singapore cap is never used up, H-1B1 visas remain available year-round.

Example: Because the H-1B1 Chile/Singapore Free Trade set-aside was new and unfamiliar, 6,100 of these visas were unused in FY’06, so these numbers were added back to the general pool for the next year, bringing the total number of general H-1B visas available at the beginning of FY’07 up to 64,300.

What about the Master’s Cap?

There is a separate pool of 20,000 additional H-1B visa numbers per fiscal year available only to candidates who have earned a Master’s or higher graduate degree from a U.S. institution of higher education. This quota does not include foreign graduate degrees, professional post-graduate certificate programs, nor Master’s degrees from for-profit or unaccredited schools in the United States. The extra “US Master’s cap” numbers are used up approximately as fast or faster than the regular H-1B cap. It is critical to note, especially for first-round H-1B cap lottery selections, that the foreign worker must have already completed the degree at the time the petition is filed with USCIS.

H-1B Cap Exemption

Some foreign workers are H-1B cap-exempt beneficiaries because they have been counted before, and some U.S. employers are cap-exempt petitioners.

Foreign workers who already hold H-1B visa status in the U.S. are exempt from the cap if they were counted against the cap when their status was first granted. This includes any worker already issued an H-1B visa abroad who has entered the U.S. on that visa to work for the sponsoring employer, and any worker who was granted a change of status to H-1B, evidenced by a Form I-797 approval notice with a replacement I-94 portion. It does NOT include workers who currently hold, and have only held, H-1B status in a cap-exempt job, such as a faculty or researchers at a university or government research institution, or physicians at teaching hospitals.

Workers In H-1B Status

Workers in H-1B status who were counted against the cap when they first obtained H status are exempt from the cap when seeking to extend their stay or change jobs. This even applies to workers who may be currently outside the U.S., so long as they have held H-1B visa status during the past six years, have not exhausted the full six years, and they have not spent a full year outside the U.S.

Non-profit H-1B Petitioner Requirements

Certain non-profit employers are exempt from the H-1B cap, but not all types of non-profits qualify. The exemption only covers I. non-profit institutions of higher education, II. non-profit research institutions, III. government research institutions, and IV. non-profits which are formally affiliated with a cap-exempt institution of higher education. The types of non-profits that qualify for this exemption have been construed narrowly: At present, most non-profit service, community, policy and arts organizations do not qualify for H-1B cap exemption. Unless the non-profit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner. What does “formally affiliated with an institution of higher education” mean? Per the final rule published in November 2016, effective on January 17, 2017, a qualifying affiliate must meet one of the following four criteria:

1. The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation; (50% ownership in common)
2. The nonprofit entity is operated by an institution of higher education;
3. The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or (100% ownership & control in common)
4. The nonprofit entity has entered into a formal written affiliation agreement with a institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. (written affiliation agreements & shared fundamental purpose)

Cap Exempt H-1B Visas for Elementary & Secondary Schools

Public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, and the offered job includes providing teacher-training services under such an agreement, but many school districts do have such affiliations. The H-1B petition must include a copy of the executed affiliation agreement.

The H-1B cap exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians’ practice group affiliated with, and located at, a university teaching hospital.

H-1B Cap Timing Issues

H-1B Petitions

When can petitions be filed for the next fiscal year?

In 2020, everything we know about filing procedures for cap-subject H-1B petitions changed. In general, all petitions for a non-immigrant worker can be filed up to six months in advance of the start date requested, so H-1B petitions for a new fiscal year, which begins on October 1, used to be filed starting in the first week of April. However, DHS sidestepped the onerous task of physically receipting and sorting more than 200,000 petitions filed in a single week, by publishing a Final Rule which introduced a lottery procedure allowing employers to pre-register electronically to sponsor named workers for the H-1B cap, without having to prepare, file, and paying for a complete H-1B petition. The online registration for the cap lottery uses myUSCIS.gov, and this year’s e-filing period is March 1 through March 17, 2023; lottery results will be sent out electronically on March 31. Notifications sent to winners selected in the lottery, whose petitions will be accepted for processing under the FY2024 Cap, will designate the 90-day period in which those petitions may be filed, but filing periods will be staggered if the entire quota is not used up in the first round of petition filings. First-round cap lottery selections may serve as the basis for H-1B petitions filed in the 90 days beginning on April 1.

A) Now that the H-1B electronic lottery has been in use for several years, and attorneys as well as corporate users now have some familiarity with the myUSCIS.gov module for lottery registration, that part is smoother, but new users frequently have trouble with setting up their “registrant” accounts, and errors can cost precious time. It is essential to note that you cannot use the same email address for more than one USCIS account, even if the accounts are of different types.

B) Because petition filing dates are staggered according to when and if an H1B cap registration is selected, once again we go into H-1B Cap season not knowing in advance when a petition for a specific worker can be filed, or if their case will be selected. This means we cannot tell any worker presently under F-1 Optional Practical Training whose Employment Authorization Document (EAD) expires in April, May, or June whether or not an H-1B petition can be filed on their behalf before that EAD expires, and thus we cannot advise them whether or not they will have F-1 “Cap-Gap” work authorization, which would allow them to keep working without interruption until October 1.

C) While the electronic lottery pre-registration process and staggered filing periods take some pressure off USCIS Service Centers, especially their mailroom contractors, the Agency has not said yet whether they will allow Premium Processing for H-1B cap petitions this year.

Do you have more questions about timing issues for cap-subject H-1B visas? Contact Karin Wolman for a consultation today!