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Understanding the H-1B Cap Makes the Petition Process Easier

Understanding the H-1B Cap Makes the Petition Process Easier

It would be nice if filing an H-1B petition for business immigration were as simple as completing a two- or three-page application and waiting a few weeks to get approval. Unfortunately, that is not how it works. The H-1B system is among the most complex of all immigration and visa programs. Much of the misunderstanding related to H-1B visas is the direct result of a cap system.

Congress has intentionally limited the number of H-1B visas USCIS can issue every year through a hard cap. The cap currently sits at 65,000. There are an additional 20,000 visas available to certain exempt individuals. If all the additional visas are not used in a given fiscal year, they are carried over and added to the 65,000 ‘standard’ visas for the following year.

The Basics of How It Works

Due to the limits and the fact that the cap is almost always reached very early on in any given fiscal year, USCIS doesn’t even accept H-1B petitions from foreign nationals who haven’t been selected in the annual lottery. So how does a person get their name in the system? By way of electronic registration.

Interested individuals must first create an account on the USCIS website. Registration begins on March 1 and ends on March 17. It is up to the individual to log onto their account during that timeframe to complete the registration process. Applicants are selected randomly through a lottery, so it is not necessary that an individual be among the first to register on March 1. They just need to be sure their e-registration is submitted correctly and before the deadline to be included in the H-1B lottery. 

It does not take long for the number of registrations to exceed the total number of visas to be issued for the next fiscal year. Thus, the lottery system. If an individual is selected in the lottery, the next step is to submit the actual H-1B petition.

No Earlier Than Six Months Prior

H-1B petitions need to be filed soon enough to allow processing prior to the start of employment. However, the USCIS does not take petitions any earlier than six months ahead of time. That is generally not a big deal given that petitions can be processed in a few weeks. With an effective date of October 1st, which marks the beginning of the government’s fiscal year, new H-1B applications can be filed no earlier than April 1st. .

That’s a critical time given the fact that a typical petition package includes 14 different types of documentation. Packets must include a number of forms including I-129, supplement forms, and a G-28. They must also include a letter from the employer sponsoring the foreign national, and it is recommended to include a letter from the attorney preparing the application. Packets must include a variety of supporting documentation including personal identification documents, education documents, company documents, and translations as needed. The H-1B application must also demonstrate the candidate’s qualifications for the position being sponsored. 

The key to ensuring swift processing of an H-1B petition is to submit a correct packet. But note that a correct packet doesn’t just contain the right documentation: it should also be arranged in a specific order to make the process easier for the USCIS officer reviewing the case. In cases where an employer submits multiple packets in the same package, each packet should be in a separate envelope.

It All Starts With the Cap

This is simply a brief overview of a very complex and nuanced process. For many foreign-born individuals, their career in the United States starts with the H-1B lottery. The H-1B cap is purposely designed to limit the number of visas the U.S. issues to temporary workers. If you do not understand how the cap system works, you could find yourself easily frustrated by the H-1B process. Fortunately, we can help as business immigration attorneys. We make it our job to know and fully understand everything about the H-1B visa, cap, and lottery system. We have helped our clients successfully navigate the complexities of the H-1B cap for many years.

Please contact us at info@grahamadair.com or 408-715-7067 if you would like our help.

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