Preparing for the H-1B Cap Season

Jan 12, 2024 | Preparing for the H-1B Cap Season

H-1B, Preparing for the H-1B Cap Season

Start preparing now for the H-1B Lottery

The FY2025 H-1B Cap Season is upon us! Employers who wish to sponsor employees for H-1B petitions should start to prepare their applications now to be ready for the lottery in March of 2024. The H-1B visa allows foreign nationals working in specialty occupations to seek employment in the USA for a three-year period. There are 65,000 H-1Bs available each year for foreign nationals with bachelor’s degrees and an additional 20,000 available for foreign nationals who received their master’s degree in the U.S. However, the demand for H-1Bs is higher than 85,000 and so USCIS runs a lottery each year to determine who may file an H-1B petition. In recent years, there has been about a 25% chance of success in the H-1B lottery. For many employers, the lottery will be the only opportunity during 2024 to apply for an H‑1B visa. 

First Step: Registration  

The first step in the H-1B cap process is filing a lottery registration online with USCIS. Registration involves submitting basic information about the employer and employee. USCIS has not yet announced the registration period for FY2025, but usually it is during the first few weeks of March.  

Second Step: Lottery Selection  

After the close of the registration period, USCIS runs a random lottery and notifies those who are selected. Last year, the lottery winners were notified electronically by April 1st. Typically USCIS selects more than 85,000 registrants with the understanding that not all registrants will ultimately submit H-1B petitions. Those not selected are put on a waiting list. In FY2024, USCIS ran a second lottery in August and selected additional registrants off the waiting list because the initial lottery did not fill the H‑1B cap. A second lottery does not happen every year.

Third Step: Filing the H-1B Petition  

The H-1B petition must be filed within 90 days of selection, which is typically the end of June. To file the H-1B petition, the employer must first file a Labor Condition Application (LCA) with the Department of Labor, post required disclosures at the place of employment, and file the I-129 petition with USCIS.  

Fourth Step: Start Working!  

Approved H‑1B applicants in the FY2025 cycle may start work on October 1, 2024 (the first day of FY2025) at the earliest. Some applicants who are changing status from F-1 OPT to H-1B may be able to benefit from the “cap gap,” which allows for OPT extension until the H-1B start date.  

Fifth Step: Renewal  

The H-1B allows for a three-year renewal. We recommend that employers file the renewal petition six months before the initial period of H-1B expires. Certain H-1B beneficiaries can be eligible for renewals beyond 6 years if they have started the green card process.  

New Regulations?  

USCIS proposed new amendments to the H-1B regulations that will likely take effect before the H-1B lottery in March 2024. These amendments are not yet law and still must go through the notice and comment period. As the regulations finalize, we will provide an update, but some of the highlights include:  

  • USCIS will select registrations in the H-1B lottery based on each beneficiary, instead of each registration. In the past, if a beneficiary had multiple registrations from various potential employers, they had a higher chance of selection than a beneficiary with one registration. This change seeks to level the playing field and give a beneficiary with one registration the same odds of success as a beneficiary with multiple registrations.  
  • USCIS will allow beneficiaries to extend their F-1 OPT EAD until April of the fiscal year that they are selected for, which would allow for an H-1B start date beyond October 1 for these beneficiaries.  
  • USCIS is seeking to amend the regulatory definition of “specialty occupation.”  
  • The new regulations give USCIS additional authority to request proof of a bona fide job offer and conduct site visits to investigate alleged fraud.  
  • The regulations will expand eligibility for cap-exempt H-1Bs to businesses that support “nonprofit research organizations” and “governmental research organizations, which will hopefully broaden the range of companies eligible to file cap-exempt petitions.

Schedule a consultation with us to discuss H-1Bs for your employees!   

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