The U.S. immigration regulations authorize 65,000 applicants to receive H-1B status each fiscal year as well as an additional 20,000 for individuals holding U.S. master’s degrees.
The U.S.-Chile and U.S.-Singapore Free Trade agreements authorize 6,800 out of the 65,000 yearly visas available to be set aside for use by nationals of Singapore and Chile. The numerical annual cap for Chile is 1,400 and for Singapore is 5,400.
Certain H-1B employees are exempt from these yearly numerical limitations. The numerical limitations do not apply to H-1B workers employed by:
- Institutions of higher education, or a related or affiliated nonprofit;
- A nonprofit research organization; or
- A governmental research organization.
The annual cap also does not apply to the following foreign nationals:
- Those who have already been counted, including H-1B extensions with the same company
- Transfers from one H-1B cap-subject employer to another H-1B employer, or
- H-1B beneficiaries who have a Conrad waiver.
In H-1B applications, the U.S. employer is called “Petitioner” and the foreign national employee is called “Beneficiary”.
H-1B Lottery – How it Works
USCIS uses a random selection process (or “H-1B lottery”) when the agency receives more H-1B petitions than available annual H-1B visa numbers.
Beginning in 2020, USCIS launched a new lottery process where U.S. employers file an abbreviated online application, and those selected are invited to file applications.
USCIS notifies petitioners and their representatives with selected registrations via USCIS online accounts.
A selected cap-subject application must then be filed by the employer within a designated filing period indicated on the USCIS notice.
The filing period for filing selected H-1B cap-subject petitions will be at least 90 days.
It is important to keep in mind that the H-1B employment start date is based on the government’s fiscal year, which starts on October 1 every year.
Even if an application is selected and approved, new H-1B employees can start working under new H-1B status no earlier than October 1st.
The exception to this rule applies to F-1 students who are working in Optional Practical Training (OPT) at the time their H-1B petitions are filed for change of status.
If their application is selected, the F-1 status and employment authorization is extended to October 1 in what is known as “cap gap”.
H-1B Cap Exemption
Cap-exempt employers may file H-1B petitions anytime of the year with start dates at any time. A cap-exempt H-1B status holder is not allowed to transfer to a cap subject employer. H-1B Cap exemption can be based on either:
- Direct employment by a cap-exempt employer, or
- Non-direct employment by a cap-exempt employer, if the beneficiary is “employed at” a qualified cap-exempt entity.
For non-direct employment cases, to be considered “employed at” a qualified cap-exempt entity, the H-1B employee must:
- Spend the majority of his or her work time performing job duties at a qualifying institution, organization or entity and those job duties directly, and
- Predominantly further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity, namely, either higher education, nonprofit
H-1B Period of Stay
Initial H-1B petitions may be approved for up to three years, with extensions of up to three years allowed.
An H-1B beneficiary is typically permitted to stay in the United States in H-1B status for six years.
A foreign national is eligible for a new six-year period in H-1B status after living outside the U.S. for at least one year.
Time spent in either H-1B or L-1 status is charged against the allowable time in the other status. For example, if you spend one year in L-1A status and later change your status to H-1B, you will be eligible only for five years in H-1B status.
However, time spent in H-4 (H-1B dependents) and L-2 dependent does not count against the maximum allowable period of stay available to H-1B and L-1 status holders.
There are two main exceptions to the six-year limitation on H-1B status:
- H-1B beneficiaries who filed labor certifications prior to the end of their fifth year and who had their labor certification pending for more than 365 days are allowed to extend H-1B status in one-year increments without regard to whether they filed an I-140 or not. Moreover, it is possible to extend H-1B status beyond the six-year limit based on a labor certification or Form I-140 petition filed by a different employer.
- H-1B holders who have an approved Form I-140 petition, but cannot finalize their permanent residence due to the per country limitations (Indian, Chinese nationals), USCIS can approve three-year H-1B extension. H-1B beneficiaries subject to per country limitations could be granted more than one extension.
Related Links:
What is Specialty Occupation in H-1B Applications
