A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, February 19, 2016

H-1B CAP Filings FAQs


For fiscal year 2017, foreign workers with approved H-1B petitions may begin employment on October 1, 2016.  The regulation allows H-1B petitions to be filed six months in advance starting April 1, 2016.  For the past few years, the number of H-1B petitions submitted by applicants far exceeded the statutory annual cap of 65,000 for regular petitions and 20,000 for advanced degree petitions.  For example, USCIS received approximately 233,000 cap subject petitions for FY2016 during the first five business days beginning April 1, 2015.  We expect that the number of H-1B cap filings will continue to exceed the annual quota this year. 

What happens if the number of filings exceeds the annual visa cap?  It has been USCIS policy to use a computerized selection process or "lottery" to randomly select a portion of the cases for further processing.  Cases will be drawn to fill the 20,000 advanced degree cap first, and then a second drawing will be conducted to fill the regular cap.   Advanced degree applicants will have a second bite of the apple, so to speak, if not selected in the first drawing.  At the end, all unselected cases will be returned to the petitioners with the filing fee checks.

How do I qualify for the additional 20,000 master (advanced degree) cap?  To qualify for the master cap, you must have earned a degree beyond the undergraduate level, i.e., MA, MS, MBA, Ph.D, JD, MD, etc.  The degree must be issued by an accredited institution of higher education that is "a public or other nonprofit institution." Therefore, degrees earned from certain private colleges and/or unaccredited educational institutions do not qualify.

How do I apply for H-1B if I haven't received my diploma yet?  To file a master cap H-1B petition, one must prove that she has been granted the requisite graduate degree at the time of filing.  Even for the regular cap filers, they usually must also establish that they have earned their bachelor's degree before April 1st.  For individuals who have actually completed all graduation requirements but have not been issued a diploma yet, they could try to get an official letter from an authorized school official to certify that they have completed all degree requirements before April 1st.

If I use premium processing service, would my chances be better in the visa lottery?  No, the visa lottery will be conducted regardless of whether or not premium processing service is used.  Premium processing service only kicks in after your case has been selected in the visa lottery.

How should I increase my chance of getting selected in the H-1B lottery?  There is no way to increase one's chance of getting selected. But you should make sure that you file your H-1B petition during the first five (5) business days in April so that you won't miss the lottery.  Also, make sure that your petition is correctly and sufficiently prepared to avoid rejection by USCIS.  

How do make sure that my H-1B petition won't be rejected?  Due to intense competition for visa numbers, USCIS will not give you a second chance to re-file your petition if it contains technical errors.  Some common reasons for rejection include improper and/or lack of signatures, improper checks (incorrect amount/payee/date, signature missing, etc.), wrong edition of the I-129 form, wrong information in the form (incorrect categories, start dates, etc.), etc.

What other things can I do now?  Gather all required documents such as your passport, I-94, diplomas, transcripts, immigration status documents, etc.  Provide all information and documents to your attorney and employer as soon as possible.  Make sure all photocopies of documents are clear and legible.  If offered the opportunity, review the application forms carefully before filing.  

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