FREQUENTLY ASKED QUESTIONS
FY2022 H-1B Cap FAQs
We are providing these FAQs to help our clients and employees understand the basics of the annual H-1B cap lottery process. This page will be updated with any developments in immigration policy impacting this year's filing season.
1. What is an “H-1B”?
An H-1B is a temporary work-authorized classification reserved for workers in “specialty occupations.” A specialty occupation is a position that typically requires at least a bachelor’s degree in a specific field (e.g. engineer, lawyer, doctor). An H-1B petition must be filed by a U.S. employer for a specific job opportunity in the United States.
2. What is the H-1B cap?
The H-1B cap is the annual quota (i.e. "cap") on new H-1Bs imposed by immigration law. A total of 85,000 new H-1Bs are allocated each year, and 20,000 of these are reserved for persons who have graduated from U.S. universities with advanced degrees (i.e. the "Master's cap").
3. How do I know if I am subject to the H-1B cap?
Unless you have previously been approved for H-1B status, you will be subject to the H-1B cap. If you previously held H-1B status, you are likely not subject to the cap unless you have used all six years of your H-1B, or your previous H-1B was filed by a cap-exempt employer. Please contact our office if you are unsure whether you are subject.
4. What is the H-1B cap lottery?
The H-1B cap “lottery” is the U.S. Citizenship & Immigration Services’ ("USCIS") random selection process to select new H-1Bs that are subject to the cap. When the demand for H-1B visas exceeds the quota, the USCIS conducts a random selection to determine which cases will be processed.
5. What is the difference between the regular cap and Master’s cap?
The regular H-1B cap is subject to annual quota of 65,000. The Master’s cap provides another 20,000 new H-1Bs and is reserved for persons who graduated with a Master’s or higher degree from a U.S. university.
6. What is the USCIS' new rule changing the lottery selection process?
On January 9th, the U.S. Citizenship and Immigration Services (USCIS) published a final rule that radically changes the random selection process for the annual H-1B cap (the “cap lottery”). Under the current system, the limited number of new H-1Bs available each year are selected randomly, with some preference given to holders of advanced degrees from U.S. universities (the Master's cap). The new system would allocate new H-1B cap numbers primarily based on the salary offered. Numbers would be made available first to positions being paid the Department of Labor (DOL)’s highest level of prevailing wage for that occupation (“Level IV”). Any remainders would first be made available to positions with Level III wages, and then to positions with Level II and Level I wages, until all available numbers are allocated.
Although the rule is intended to apply to the upcoming FY2022 H-1B cap lottery, which is expected to be run in March of this year, there are several factors which may prevent it from taking effect. For more information, please click the link below to read the full alert on our website. We will keep this page posted with any updates.
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Registration & Petition Filing Process
7. What is the new registration requirement for new H-1Bs?
The USCIS introduced a new online registration process for the H-1B cap lottery during the most recent FY2021 H-1B cap season. Any employer who wishes to sponsor an H-1B worker must pre-register the individual through an online registration process. If the USCIS receives a sufficient number of registrations to meet the annual quota, it will then conduct the lottery prior to April 1st.
8. When will my registration be submitted?
The registration period will be announced each year by the USCIS with at least 30 days’ advance notice, and the registration period will last for at least 14 days. In FY2021, the USCIS' designated registration period was from March 1st through March 20th, and will likely be the same for FY2022. Our office will submit your registration once the registration period opens.
9. What is my employer required to submit for the registration?
Each registration will require basic information about your employer, and your biographic information. Our law firm will also collect additional information and documentation from you to vet your case. For example, we will advise you on any applicable restrictions (i.e. whether internal travel should be avoided) and other details on processing, in the event that your are selected in the lottery.
10. Once the registration period closes, when will the lottery be conducted, and how will I know if I was selected?
The USCIS will likely notify those selected in the lottery no later than March 31, 2021, following the close of the registration period. The USCIS has not provided a more specific date, thus we expect the USCIS to announce selected registrants sometime between March 21st and March 31st, 2021.
11. When will my H-1B cap petition be filed?
If the USCIS selects your registration in the lottery, the earliest we can file your H-1B cap petition is April 1, 2021. Starting with the most recent FY2021 H-1B cap season, the USCIS has expanded the petition filing period to allow for at least 90 days, which means employers will be able to prepare and file H-1B cap petitions anytime between April 1st and June 30th.
12. What happens if my registration is not selected in the lottery?
Registrations not selected in the lottery will be held in reserve, and may be selected later if the USCIS does not fill the cap limit from the pool of initial cap registrations.
13. Can my employer submit multiple registrations for me to improve my odds of selection?
No. Employers may only submit one registration per prospective H-1B employee. If more than one registration is submitted by the same employer for the same individual, both registrations will be rejected.
14. If my registration is accepted in the lottery and my H-1B petition is approved, when can I start working in H-1B status?
If your H-1B petition is approved, the earliest start date that we can request to begin working in the United States in H-1B status is October 1, 2021, which is the start of Fiscal Year 2022 (“FY2022”).
15. If the H-1B cap petition is approved while I am outside the United States, when can I enter the United States in H-1B status?
You can enter the United States in H-1B status ten days before the start of the fiscal year, on September 21, 2021, provided you have obtained a valid H-1B visa beforehand (Canadians are visa-exempt and can enter using the H-1B approval notice). Note that if you enter on September 21, you must still wait until October 1, 2021 to start working.
16. I will not be graduating from my degree program until after April 1st. Will I still be able to qualify for an H-1B?
Per the USCIS’ new registration procedures, the H-1B cap filing season will start on April 1st and last for at least 90 days. If your registration is selected in the lottery, we can wait to file your H-1B petition until you have received confirmation that your bachelor’s or Master’s degree has been conferred, assuming we receive such confirmation timely to file the petition before the filing season ends.
17. What is the difference between a change of status (COS) cap petition and a consular processing (CP) cap petition?
Every H-1B cap petition must be filed as either a change of status or consular processing (also called "consular notification"). Change of status is filed for individuals who are physically present in the United States at the time of filing the petition, and whose status will automatically convert to H-1B at the beginning of the fiscal year (October 1, 2021), or when the petition is approved, whichever occurs later. If you are currently in F-1 student status, your H-1B cap petition will likely be filed as a change of status to benefit from "cap-gap" work authorization.
If you are outside the United States when we file your petition, the petition will be filed requesting consular processing. This means the petition will not be effective until you apply for an H-1B visa (with the approval notice) and enter the United States using that visa. Note that the earliest you can enter the United States is September 21, 2021 (ten days before the fiscal year starts), and you cannot start working until October 1, 2021. If you are inside the country, it may still be advantageous to file consular notification instead of a change of status, depending on your travel plans, when your current status expires, and other factors. We will discuss this with you before we file your petition.
Travel & Dependents
18. Am I subject to travel restrictions while my H-1B is pending?
If your H-1B cap petition is filed COS, you must be in the United States when we file the petition and should not leave the country after it is filed without checking with our office. If you leave the country before the petition is approved, the request for a change of status will be abandoned, and you will not automatically convert to H-1B status on October 1, 2021. If you are in F-1 status, this could also affect your eligibility for a “cap-gap” extension of work authorization (see section below on F-1 OPT students).
19. Can I include my dependents on my application?
If you are in the United States when the petition is filed, and it is being filed as COS, a change of status for your immediate family members to dependent H-4 status may also be included.
F-1 Optional Practical Training (OPT) Students
20. Assuming my registration is selected in the lottery and an H-1B petition is filed for me, will I have to leave the country and/or stop working if my OPT expires after April 1st, but before the October 1, 2021 start date?
No, you will not have to leave the country or stop working, provided the following conditions are met: your H-1B petition is filed as a change of status requesting an October 1, 2021 start date; the petition is filed before your OPT expires and approved; and you do not depart the United States before the petition is approved (i.e. while it is pending). This is called a “cap-gap extension.” Cap-gap extensions do not apply to curricular practical training (CPT). Our office will prepare complete petitions prior to the close of the registration period for students in F-1 status who will need to use the cap-gap extension, and whose OPT is expiring in early April.
21. If I am rejected in the lottery and my OPT is expiring, what are my options to continue working in the US?
This will depend on your specific circumstances, which we will discuss with you if you are not selected in the lottery. If you are eligible for a STEM OPT extension, and your employer has agreed to sponsor such extension, you may be able to extend your F-1 OPT for an additional two years, which would give you more chances in subsequent lotteries.
22. Can I leave the country after the H-1B cap petition is filed and before it is approved?
If your petition was filed requesting a change of status, you should not leave the country until the petition is approved. If international travel becomes unavoidable, please contact our office before leaving. If you leave before the petition is approved, your change of status will be considered abandoned, and your H-1B will not automatically take effect on the start of the fiscal year (October 1, 2021). You would also not be eligible for a “cap-gap extension” (see above). If your petition was filed requesting consular notification, there are no restrictions on international travel while your H-1B cap petition is pending.
23. My first year of OPT is expiring after April 1, but before October 1, and I am eligible to file a STEM extension. Should I file for the STEM extension before April 1, 2021?
The answer to this will depend on many factors, including whether you have international travel plans, and when your OPT is expiring. Please contact our office to discuss specifics.
24. Can I leave the country after the H-1B petition is approved but before October 1, 2021?
Yes, but if you will be reentering the country before September 21, 2021, you must enter using a valid F-1 visa, valid I-20, EAD card, and employment verification. If you seek to reenter on September 21, 2021 or later, you may enter with an H-1B visa, but you will not be able to start working in H-1B status until October 1, 2021. Note that if you are working pursuant to a cap gap extension (see above) we recommend that you do not leave the country during the gap (between your OPT extension and October 1, 2021). In all cases where your petition will be filed requesting a change of status, we strongly encourage you to check with our office before planning international travel.
25. If my H-1B cap petition is approved, will I need to apply for an H-1B visa at a U.S. Embassy or Consulate abroad?
If you are in the United States and your H-1B petition was approved with a request for a change of status, your H-1B status will automatically take effect on October 1, 2021. You will not need to leave the country before then to obtain an H-1B visa. However, if you seek to reenter the country after October 1, 2020, you will have to apply for and obtain an H-1B visa at a U.S. Embassy or Consulate abroad before reentering (unless you are a Canadian citizen, or are traveling only to Canada or Mexico for a brief trip and qualify for automatic visa revalidation).
If your H-1B petition was filed requesting consular notification, you will need to apply for an H-1B visa before entering the country in H-1B status (unless you are Canadian). The soonest that you can enter the United States in H-1B status is September 21, 2021, and you cannot begin working in H-1B status until October 1, 2021.