A Complete Guide to H-1B Cap, H1-B Exemption, LCA, H-1B Cap Process, and H1-B Lottery
The H-1B visa is a popular and the most sought-after US work visa because it has many advantages for US employers and foreign employees. But here’s the bad news. An H1-B visa has an annual limit called the “H1-B annual cap”. This limit is the number of new H-1 B’s that can be approved annually.
This essay will help you prepare for the H-1B cap 2024 filing, beating the FY 2024 H-1B cap race and succeeding in the H-1B lottery.
What is the H1B visa?
By this visa, companies can hire people who have a university degree for certain professions. Due to this, it is also known as a Person in Specialty Occupation Visa. Therefore, if the applicant has the following characteristics, he/she can apply for this visa:
Having an upper-level educational qualification including:
- Bachelor’s degree or equivalent
- Master’s degree or Doctoral
- Taking advanced courses in fields such as fashion models
- Eligible individuals who can participate in research projects in government areas or the Department of Defense
What are the H1B visa requirements?
To receive this visa, you must first find an employer as a sponsor. If the employer cannot find an appropriate employee for the job position among American citizens, he/she can look for someone outside the United States. This job position requires a specialist who has a university degree or has taken specialized courses in a particular field. Expert people are people with special skills that not many people can do their tasks successfully. Specialists in information technology, physicians, lawyers, accountants, architects, and professors are some of the experts who are eligible to receive the H1B visa.
Therefore, the employer must first find a foreign employee who is suitable for the job position he/she wants. After that, the visa process will initiate.
A company that employs a foreign employee should have an Internal Revenue Service or IRS number.
How to apply for this visa?
H1B visa sponsors database or (sponsorship process):
First step: Labor Conditions Application
The US employer must acquire an approved Labor Conditions Application (LCA), which is issued by the US Department of Labor. This document allows the employer to hire a foreign employee. It also shows that the employer has not been able to find a qualified person for the job position among US citizens. The number of years that the employer will employ foreign employees should be clarified in the document.
Under this document, the employer undertakes:
- The prevailing wage will be paid precisely equivalent to non-foreign employees
- Proper working conditions will be provided.
- Any changes to the labor certificate will be notified to the employee.
- The workplace will be notified to the government.
- Company information and the number of employees will be provided.
- Description of job and income will be stated.
Prospective employers register the Labor Condition Application (LCA) on behalf of the foreign employee applying for a job position. The United States Department must approve the application of Labor. Therefore, the employer must obtain an approved LCA before any action can be taken.
Second step: Petition for Nonimmigrant Worker, Form I-129
The second step is to provide an occupation offer to the foreign employee and register Form I-129 (Petition for Nonimmigrant Worker). This petition must be processed by the US Citizenship and Immigration Services or USCIS. The authority to employ a foreign worker from the US government is approved using this form. Employers must request separate I-129 forms per employee.
If two corporations hire an employee, each one must seek a Form I-129. If the employee intends to extend the job, the employer must register a Form I-129. If the employee is changing the position, the prospective employer must file a new Form I-129 (H1B Transfer).
In addition to Form I-129, other forms must be completed, and fees must be paid:
- I-129 Form filing fee: Employers can be exempted from paying this fee by filling out Form I-912.
- Employer Funded Training Fee: $1,500 for employers with more than 25 full-time employees in the US; $750 for employers with less than 25 full-time employees in the US
- Fraud Prevention and Detection Fee: $500 for each foreign worker
- Public Law 114-113 Fee: $4,000 must be paid by the employer who has more than 50 workers, and 50% of them have the H1B visa and L visa. In case of extension and modification of the USCIS petition, the employer will be exempted from paying this fee.
- Form I-907 and paying $1,225 is necessary for workers who demand Premium Processing from USCIS.
- If a lawyer represents the employer, Form G-28 must also be completed.
- Copies of the applicant’s degrees that demonstrate his or her proficiency must be provided.
- Copy of the applicant’s passport
- A copy of the contract which has been signed by the employer and the employee
- Internal Tax Return of the corporation
- A report of state salaries paid to workers
- 15 photos of the premise of the business
All forms must be signed in black ink. The petition is then sent to USCIS by the employer via one of the four locations:
- Nebraska Service Center
- Vermont Service Center
- Texas Service Center
- California Service Center
The USCIS issues a case number after receiving the request (for example, EAC-18-107-50321). This number helps the employer track the status of the application. The first three letters of this number indicate the service center (in this example, EAC is for Vermont). The following two digits indicate the year of application (18 refers to 2018). The next three-digit number indicates the day of application. This number is calculated as follows, from the first day that is opened the application period till the last day, regardless of the holidays and weekends (107 in this example). The last 5-digit number also indicates the case number (50321 in this example).
The USCIS examines the petition and considers whether the job is real or speculative and ultimately approves or rejects it. Employers and employees cannot take any action before this process is completed. If the USCIS approves the request, they will issue a new form, Form I-797. The issuance of this form indicates that the employee is allowed to start the application process.
From October 1st until September 30th, the USCIS approves about 65,000 applications annually. Of these, 6,800 applications are for H1B1 visas for Chile and Singapore citizens, and the rest is for H1B visas.
Steps to be taken by an employee:
Applicants for the visa must first complete the H1B visa application form called DS-160. After that, the applicant must schedule the interview as early as possible. If you make this appointment earlier, it will be better for you. The application fee for H visa categories is about $ 190. The cost of issuing the visa will depend on the embassy. In this case, you should seek guidance from the embassy where you are applying from.
If the company has more than 50 employees, where 50% of them have an H1B or L visa, the employee must pay an additional $ 2,250. Other documents to be submitted include:
- A valid passport
- Copies of all passport pages
- All previous passports
- Receipt of all payments
- A photo that must meet the defined standards
- The original and copy of the letter issued by the embassy at the time of the interview
- Copy of Form I-797
- Employer’s letter with job descriptions
- Employee’s qualifications
- Copy of Form I-129
If you have previously worked in the US, you must also provide the following documents:
- Tax return forms
- Information related to previous employers
- Your Curriculum Vitae or CV
- The amount of salary received during the last 12 months
If you are applying for the first time, you must provide the following documents:
- Your CV
- Information about previous and new employers, supervisors, and managers
- Contact information of both former and current colleagues
- A letter describing the duties and responsibilities you will have in the United States
- Photographs of the current and previous job locations
- Pictures of your future working building in the US (outside and inside), annual report, prospectus, and brochures
- Your bank statement
As part of the H1B visa process, you must attend an interview. During the interview, you must provide your documents and be prepared to answer a range of questions about your job. Interviewers will know whether you have all information and whether you are entering the US to become employed or to be involved in other activities. If this is the first time you are applying, your fingerprint will be taken and saved in the system.
How long does it take to evaluate the provided documents and issue the visa?
The processing time for issuing an H1B visa varies and depends on the country of the applicant. Therefore, it is reasonable that you contact the embassy where you are applying.
How long can you stay with this visa?
Initially, this visa is valid for three years. It can then be extended for another three years. So in most cases, you can use this visa to stay and work in the US for six years. This visa is a dual visa, meaning that the holder can apply to change the H1B visa status to an immigrant visa. So if you are qualified and have an appropriate job offer, you can apply for an Employment-Based Green Card.
Can your dependents come to the United States under this visa?
Most H1-B visa holders want to bring their children and spouse to the US. Their Spouse and children can petition for an H4 visa. Since 2015, H4 visa holders can work under the H 4 EAD program under specific conditions. Besides, they are also permitted to enroll in studies. Children under 21 years can also go to the US through an H4 visa.
How to renew the H1B visa?
The steps for renewing this visa are the same as the initial application procedure. The same costs must be paid except for the Fraud Prevention and Protection Fee. The employer must go through the previous steps to obtain approval from the United States Department of Labor and the USCIS. The documents required to renew an H1B visa are:
- A valid passport
- Original I-94 Form
- I-797 Form
- Letter from the employer explaining your duties in detail and signed by the company agents
If the employer makes any changes, the H1B amendment will be required. The changes refer to anything that may affect the eligibility of the visa holder. The USCIS has not provided a list of specific changes, but examples include:
- Any changes in the structure of the company
- Promote employee status
- If the employee has to move to a new location other than the one registered at the USCIS
The amendment can be registered after the change has happened. Since there is no general instruction, the employer should contact the USCIS to ascertain if the change requires an amendment petition.
How to access healthcare under this visa?
The type of insurance that an H1-B visa holder can choose depends on the length of your stay in the US. The types of insurance that the visa holder can choose are:
- Short-term insurance
- Long-term insurance
It is also recommended that people with an H4 visa purchase health insurance before entering the US because the cost of healthcare services in the US is quite high.
What is the “H-1B Annual Cap”?
The H-1B cap limits the number of new H-1B visas that can be accepted in a fiscal year. This fiscal year is from October 1 to September 30. The H-1B Annual Cap refers to the limit on the number of new H-1B applications that can be approved In any fiscal year.
Why is the “H-1B Annual Cap” Important?
The H-1B registration starts on March 1, 2023. During that time, the H-1B filing begins. If a US employer wants to file H-1B cap petitions for foreign employees and help them come and work in the US with an H-1B status on October 1, they must register and pay a $10 registration fee for each applicant. The US employer must complete the process during an “H-1B Registration” period from March 1 to March 18, 2023.
When USCIS collects enough H-1B registrations to fill the H-1B cap numbers, it will stop accepting further H-1B registering applications.
In terms of the H-1B cap 2024 files, if you do not submit the H-1B registrations from March 1 to March 18, 2023, you will not be allowed to file new H-1 B’s until the following year, which means US employers cannot bring foreign employees under the H1B program until October 1, 2024!
The FY 2024 H-1B Cap Number: What is it?
The present annual limit for the US H-1B visa is 65,000. It means that only 65,000 new H-1B visas can be issued in each fiscal year. Good news for Chileans and Singaporeans. Up to 6,800 H-1B1 visas are reserved for them. If any H-1B1 visas are unused, they will be available for H-1B usage in the next fiscal year.
Are there any Exemptions from the H-1B Cap?
The yearly cap does not apply to all H-1B nonimmigrant workers. The following petitions are excluded from the H-1B yearly cap:
- The advanced degree exemption (The Master’s Cap). It exempts up to 20,000 petitions submitted on behalf of beneficiaries with a US master’s degree or above from the limit. The following are the three key requirements for the master’s component of the H-1B cap:
- You must hold a master’s degree from a university in the United States.
- A nationally renowned agency must accredit such institutions.
- The establishment must be either public or nonprofit.
- H-1B employees who have formerly been counted against the cap but have not yet achieved the statutory maximum of 6 years on H or L status in the United States are not counted against the cap.
- The H-1B cap does not apply to:
- Government research organizations
- Nonprofit research organizations
- Higher education institutions or their associated or related nonprofit entities
- Those who will labor in Guam or the Northern Mariana Islands.
What is the H-1B Lottery?
USCIS will randomly select the number of petitions needed to reach the numerical limit if it receives more than it can accept during the H-1B registration period.
This is typically called the H-1B lottery. If your petition is not picked in the lottery, USCIS will reject it.
Last year, USCIS received almost 483,927 H-1B cap registrations during the registration period from March 1 to March 18, 2022. This high number of petitions resulted in an H-1B lottery.
H-1B Cap 2024
On March 1, 2023, USCIS is scheduled to start accepting H-1B registrations for applications subject to the FY 2024 cap. However, USCIS will accept H-1B registrations received between March 1 and March 18, 2023, and if USCIS gets more applications than it can accept during that period, USCIS will halt accepting new H-1B petitions until the next fiscal year.
What’s Happened in H-1B Registration in the Recent Past?
The H-1B Regular Cap and the Master’s Cap were met within the registration period in each of the previous five years (2019-2023). Therefore, the “lottery” was held at the end of the registration period by USCIS.
What Should the US Employer Do for H-1B Cap 2024 Filing?
US Employers must register and file electronic registrations for each foreign employee. Because the registration price for each petition is only $10, companies are expected to register in large numbers to increase their probability of selection in the H-1B lottery.
The number of H-1B cap registrations has continuously increased throughout the years. The H-1B limit has been reached within the obligatory registration period in the previous five years.
It is expected that the demand for new H-1B visas will far exceed the available statutory H-1B cap limit this year, leading to an H-1B lottery in March because the H-1B is still the most relevant visa option for employers looking to hire foreign nationals in science, marketing, accounting, engineering, and technology.
A lottery will be conducted by USCIS on March 18, 2023, if the H-1B cap for FY 2024 is reached.
How to File for the H-1B Annual Cap 2024 Successfully?
The USCIS is scheduled to start receiving H-1B registrations for applications related to the FY 2024 cap on March 1, 2023. Successful FY 2024 H-1B petitioners will be able to begin working in the United States on October 1, 2023.
Step 1. Develop an H-1B Cap Filing Plan
With the H-1B cap likely to be filled during the H-1B registration period from March 1 to March 18, 2023, the H-1B cap 2024 season provides employers with two challenges:
- H-1B registrations must be submitted on time to be included in the lottery; and
- H-1B lottery petitions must be properly filed to guarantee successful adjudication or avoid rejection.
To combat these issues successfully, you must have a complete H-1B filing plan and closely adhere to filing standards. In addition, you may eliminate uncertainty and boost your chances of success by planning ahead of time.
Step 2. Ensure H-1B Cap Petitions are Filed During the Filing Period
Timing has always been vital when planning for H-1B cap applications.
The FY 2024 H-1B cap is anticipated to be reached from March 1 through March 18, 2023 (the H-1B registration period). Therefore, we will almost certainly have another H-1B lottery this year.
Employers who fail to file H-1B petitions in 2023 will not be able to file a new H-1B until the following year and will not be permitted to hire new foreign employees according to the H-1B program until October 1, 2024.
As a result, you must be mindful of the filing time and go through the registration of your cap 2024 applications at the right time if you want to win the H-1B cap race.
The H-1B filing process includes numerous key steps that must be completed before the H-1B petition may be filed with the USCIS. These include getting credential assessments and an approved Labor Condition Application (LCA) from the Department of Labor.
Planning accordingly when preparing for the H-1B cap filings is important. Preparing your petition in advance will increase the likelihood that USCIS will accept your petitions for consideration during the H-1B registration period between March 1 and March 18, 2023.
Step 3. Properly File Your H-1B Cap Petitions
Employers frequently make avoidable mistakes in their haste to file H-1B petitions on time, which can have a major impact on the result of the H-1B case. For example, employers frequently commit the following H-1B filing mistakes:
Deficient Job Description
The job description must explicitly state that the beneficiary must have a bachelor’s degree in a certain field of study to execute the tasks of the job position.
Job descriptions that fail to effectively convey the necessity for the employee to hold at least a bachelor’s degree in a certain field to perform the job position’s duties frequently negatively influence the H-1B petition’s result.
Overlooking Possible Delays in LCA Certification (FEIN Mismatch)
Before filing the H1B petition with USCIS, the H1B employer must file an LCA (Labor Condition Application) with the DOL. This is based on the Immigration and Nationality Act (INA) to fulfill the salary and working conditions criteria.
If the DOL (Department Of Labor) FLAG system does not recognize a business’s FEIN, the company must be pre-certified before submitting the LCA. This precertification process might take anywhere between 1 and 5 days.
Preparing and submitting LCAs early will save you time and provide you enough time to take corrective measures if the DOL FLAG system does not identify your company’s FEIN.
You can learn more about the LCA in the following sections.
Failure to Determine Previous H-1B Status Properly
When recruiting someone previously in H-1B status, it is important to discover whether or not this person has previously been counted against the cap.
Suppose the foreign employee was not previously counted towards the cap and is transferring from an exempt job or employer. In that case, the US employer must file a new cap-subject H-1B petition on behalf of the employee.
Selecting Incorrect Data or Start Date on Form I-129
Applying for an H-1B start date earlier than October 1, 2023, on Form I-129 will result in the petition rejection. USCIS also publishes fresh editions of its Forms regularly.
The USCIS may summarily reject a petition if Form I-129 is outdated. Therefore, to ensure that the H-1B Cap petitions are filed using the correct form I-129 and to seek a start date no earlier than October 1, 2023, check the edition of the form I-129 to make sure it is in the correct format.
Filing with the Wrong Fees or at the Wrong Service Center
The appropriate filing fees must accompany all new H1-B cap petitions. An H-1B petition will be denied if any essential fees are not included or are provided in the improper amount. H-1B Cap applications must be filed at the Service Center listed in the H-1B Selection Notice.
To eliminate H-1B petition filing problems, send a separate check for each filing fee and ensure the petition is sent to the relevant Service Center.
In addition to timely submission, meticulous attention to relevant filing rules is required to guarantee that petitions selected in the H-1B lottery are not declined or refused to owe to the incomplete or incorrect filing.
H-1B Lottery 2024
The H-1B cap 2024 filing period will be extremely competitive. With the demand for new H-1B visas expected to be the same as last year, competition will be fierce.
A rise in H-1B filing numbers reduces the chances of a timely submitted H-1B petition being selected in the H-1B lottery. Therefore, a firm grasp of what to expect in the H-1B filing period is critical for efficiently planning your H-1B submissions and increasing the likelihood of your H-1B petitions being approved.
H-1B Cap Process
Here’s a short explanation of what happens once the H-1B annual cap has been reached:
- The USCIS monitors H-1B petition files and assesses whether it has received enough applications to meet the annual cap.
- Once the date is set, the H-1B applications that the USCIS receives on that day will be selected.
- The 20,000 petitions will be chosen from those submitted to the master’s cap. Those who did not cut will be re-entered into the normal cap.
- The 65,000 petitions for the normal cap will be chosen.
- H-1B applications that are not picked will be rejected and returned, with a refund of the filing costs paid.
- Petitioners may resubmit H-1B applications during the next open term (the next fiscal year).
Any H-1B petitions submitted after the USCIS deadline will be denied unless the petition is exempt from the H-1B limit.
One often-asked topic is if premium processing impacts the H-1B cap. Premium processing is a service offered by the USCIS that enables most visas and green cards obtained through the I-129 and I-140 petitions to be accelerated from a six-month average to only 15 calendar days.
While this may appear handy at first glance, there are various reasons why premium processing may not be as beneficial as you may believe:
- Premium processing does not raise your chances of receiving an H-1B visa.
- If you are picked for the H-1B cap, premium processing will not boost your chances of approval.
- H-1B visa premium processing services have been halted in the past to allow those without them to be processed.
If your petition lacks evidence, you may be granted an RFE. However, if you have been given a Request for Evidence (RFE) and have a limited time to resubmit your petition, H-1B cap premium processing might be beneficial.
If the USCIS does not handle your petition within 15 calendar days after you have chosen premium processing, you should be awarded a refund, and your petition should be processed ordinarily.
What Happens After Processing?
The USCIS will process your petition if it is accepted. Remember that being picked for the H-1B limit does not ensure that your petition will be accepted. It will undergo a preliminary procedure to assess whether your petition has the necessary proof and whether all of the information is true, consistent, and comprehensive.
If it fails this assessment, it will certainly be rejected and returned to you with no reimbursement. If this is the case, you may be able to simply correct the error or include the necessary proof and refile the petition under specific conditions. However, you may be required to submit it in the following year.
Suppose your petition passes the first stage and advances to the second. In that case, it will be reviewed by an immigration officer to decide if you and your US employer fulfill all of the H-1B visa criteria. If it fails at this level, it may be refused, meaning you’ll have to either appeal or file a legal motion.
However, if your petition survives this second step, it will most likely be accepted, and you will be eligible to begin working as an H-1B employee on October 1 of the year. You may be required to attend a consular interview if you are not in the United States when your petition is accepted.
Let’s sum up…
In this article, we reviewed the essential aspects of a US work visa. On the Visa Library website, you can learn about other US visas as well as ways to immigrate to other countries. In case you have some experience, please write it down in the comment section. Your comments let the readers choose better and avoid mistakes. Conveying your experiences in comments is a great help for applicants.