H1-B (CaP) Lottery Information

U.S. businesses use the H-1B visa program to employ foreign workers in specialty occupations that require the theoretical or practical application of a body of highly specialized knowledge, including but not limited to scientists, engineers, or computer programmers. For eligibility criteria on what occupations qualify please visit the USCIS website here: https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models.

Under the lottery system, the USCIS allots 65,000 H-1B visas under the regular ‘cap’.  If USCIS receives more than enough petitions to meet the regular cap during the first five business days, they will use a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap.

An exemption from the H-1B cap is available for 20,000 petitions filed for a beneficiary  (employee) who has obtained a U.S. master’s degree or higher (commonly known as the “advanced degree exemption”). If USCIS receives more than 20,000 petitions requesting an advanced degree exemption during the first five business days, we will use a lottery to randomly select 20,000 petitions for the advanced degree exemption before conducting the lottery to select petitions under the regular cap. Petitions not selected for the advanced degree exemption will be entered into the lottery for the regular cap.

Our firm advises that any companies contemplating filing under the H-1B cap start the process as soon as possible, especially if they plan on filing multiple petitions.  All petitions must reach the appropriate USCIS Service Center by April 1st, but not before.  Selected and approved petitions will allow the beneficiary to begin work on October 1st.  

Please note that a certified Department of Labor LCA (Form ETA 9035) is mandatory and must be submitted with the H-1B petition. The certification process usually takes 7-10 working days. Due to this time constraint, we advise clients to plan ahead.

 

Filing Fees are as follows:

A. Form I-129: $460.00

B. American Competitiveness and Workforce Improvement Act of 1998 (ACIWA) Fee:  

    - $750.00 for employers with 1 to 25 full-time equivalent employees, unless exempt.

    - $1,500.00 for employers with 26 or more full-time equivalent employees, unless exempt.

C. Fraud Detection Fee: $500.00

D. Public Law 114-113 Fee: $4,000.00 for petitioners (employers) who: Employ 50 or     more     employees in the United States and more than 50% of those employees are in H-1B     or L-1 nonimmigrant status; and Must be submitted with a request for initial H-1B     status or a request for a beneficiary already in H-1B status to change employers.

E. Form I-907 (Premium Processing – OPTIONAL): $1,225.00 – Decision made within     15 calendar days.

All fees, with the exception of Premium Processing Fee, must be paid by the employer and cannot be recouped in anyway from the employee in the future or at the time of petition selection or approval.  

Please contact out office for a free consultation, list of required documents and attorney fees.

 

H-1B Cap Exemption Information

 

Some foreign workers are eligible for H-1B cap-exemption status.  If you previously held H-1B status and are outside the U.S., you may be eligible to have an Employer file a Cap Exempt H-1B petition for the remainder of your allowed time up to 3 years.

In order to qualify you must be able to show that:

  1. You were in H-1B status in the US within the past 6 years.

  2. You have not used your 6 years of H-1B status.

Alternatively, there are several exceptions such as cap exempt employers.  

The cap exempt visa petition allows certain non-profits to be excluded from the program-1B lottery mentioned above. To apply for the cap-exempt visa petition the affiliated or related nonprofit entity must meet one of the four requirements:

1)    Be Connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;

2)    Be operated by an institution of higher education;

3)    Be attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or

4)    Have entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education. The agreement must ensure that a fundamental activity for the non-profit entity directly contributes to the research or education mission of the institution of higher education.

These employers have the ability to avoid the annual H-1B cap and can hire employees that qualify under the USCIS’ definition of a specialty occupation year round.  

Physicians currently in residency under a J-1 or H-1B visa may also qualify to become cap-exempt under certain circumstances.

*Please contact our office to discuss your options.