Q: What is the H-1B visa?
A: The H-1B program allows companies and other employers in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge. It requires at least a bachelor’s degree or higher in the specific specialty, or its equivalent, including in fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. There is a Congressionally mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”) and the advanced degree exemption (an exemption from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher) of 20,000.
Q: What is the H-1B cap or lottery?
A: If the USCIS reaches its limit, or “cap”, of 85,000 then the USCIS conducts a lottery wherein it randomly selects 20,000 for the master’s degree cap and then 65,000 for the bachelor’s degree cap. Those not selected in the master’s degree cap after the selection of the 20,000 get put into the selection for the regular 65,000 cap.
Q: How does an employer enter its employees into the H-1B lottery?
A: If the USCIS reaches the H-1B cap limit, employers must register their employees for the H-1B cap via an electronic registration. The USCIS generally opens this registration period in the first few days of March, and then closes the registration period in mid- to late-March. The USCIS registration fee is $10 per employee. A bona fide intent to file an H-1B petition must exist for each employee registered. Failure to file an H-1B petition for a selected employee within this timeframe could result in penalties.
Q: When does the USCIS select H-1B registrations?
A: Over the past few years, the USCIS has opened the H-1B cap registration window in early March and has required employers to submit their H-1B cap registrations by mid- or late-March. The USCIS has made its H-1B cap selections during the first week of April. If the USCIS does not receive enough H-1B cap petitions during this filing period to meet the 85,000 H-1B annual limit, the agency may conduct one or more subsequent lottery selections to reach the limit, as it has done in recent years.
Q: The USCIS selected our H-1B registration. How long do we have to file the H-1B petition with the USCIS?
A: An H-1B cap-subject petition must be properly filed with the correct service center and within the filing period indicated on the relevant registration selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days.
Q: Is premium processing available for H-1B cap petitions?
A: Premium processing is currently available for all H-1B petitions. Unless the USCIS disallows premium processing for the next H-1B cap season, premium processing will be available for H-1B cap petitions.
Q: What is Trow & Rahal’s services for registering for the H-1B cap?
A: We can register the company’s employees in the H-1B only, or we can also provide an assessment of each employee’s H-1B visa viability prior to registration.
Q: What is an H-1B assessment, and what are its advantages?
A: Trow & Rahal will conduct a full assessment of the H-1B cap case (for part of the H-1B legal fee) before the registration to identify any potential issues that could impact a successful H-1B petition, such as prevailing wage, specialty occupation, or whether there is not a match between the degree and job duties. The assessment allows Trow & Rahal to make a judgment as to whether the case is likely to succeed and if any issues are identified, provides additional time to address them with the company and to lay the groundwork for a successful petition. For each assessment, we will send the company a report that will identify any potential issues with the H-1B petition, if selected.
Q: When should a company contact the firm to start H-1B cap cases?
A: We encourage employers to provide contact us between January and February of each year with a list of employees whom the company is interested in registering for the H-1B cap. We will supply the company with our intake form, the responses to which will allow us to move forward with the assessments.