The U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016 that it had already reached the 2017 H-1B cap. For those who managed to apply during the 5-day period from April 1-5, a lottery will ensue to determine who goes on to receive an H-1B visa. Check out our comprehensive article to learn everything you need to know about H-1B visas and the H-1B cap.

H-1B Visas are for Foreign Workers with Specialized Knowledge.

The H-1B visa allows foreign workers with specific expertise to work legally in the US. It is a non-immigrant visa, which means that H-1B holders are not considered US citizens or permanent residents. Importantly, all recipients must show proof of a bachelor’s degree (or equivalent) in their field. A notable exception to this rule is in the fashion industry, where applicants must show international recognition of their status in the industry. Work in the following industries is considered appropriate justification for an H-1B application:

1) Engineering

2) Mathematics

3) Physical Sciences

4) Biotechnology

5) Chemistry

6) Medicine and Health

7) Accounting

8) Law

9) Business Specialties

10) Education

11) Social Sciences

12) Architecture

13) The Arts

14) Theology

There is a Limit on the Number of H-1B Visas.

The “H-1B Cap” is a congressionally-regulated limit on the number of H-1B visas that can be granted each year. For 2017, the cap was set at 65,000 for traditional H-1B visas, with an additional 20,000 visas for applicants with advanced degrees. Each year, applications are accepted for a minimum of 5 days. If the cap is exceeded in these 5 days alone, no further applications are accepted, and a lottery is used to determine who goes on to receive an H-1B visa. If the cap is not reached after 5 days, applications are accepted until the cap is reached.

H-1B Visas should be Submitted within Five Days of the Application Opening.

From 2010-2013, applications for H-1B visas were accepted for over 200 days before the cap was reached. However, due to the increasing popularity of these visas, the cap has been reached within 5 days ever since 2014. This means that applications submitted more than 5 days after the cycle opens may not even be considered for approval. Although several major figures are calling for an increase in the cap, thus far the cap has remained stable over the past several years.

Applicants with a Master’s Degree have a Better chance of Recieving an H-1B visa.

Although the cap for traditional H-1B visas is 65,000, an additional 20,000 spots are available for advanced degree holders. This includes holders of US masters degrees or a verified equivalent. If the cap is exceeded for these additional spots (as was the case in fiscal year 2017), a lottery is conducted. Those that are not selected for an H-1B during the advanced degree lottery are then entered into the lottery for the 65,000 traditional spots. Therefore, applicants holding a masters degree or equivalent have more spots open to them and are eligible for two lotteries instead of one.

Some Applicants are Exempt from the H-1B Cap.

Foreign nationals working at universities, non-profit research facilities associated with universities, and government research facilities are not subject to the H-1B cap. Notably, contractors working at a university, but not directly employed by the university, are also exempt from the cap. Finally, an additional 1,400 H-1B1 visas are reserved for Chilean nationals and 5,400 are reserved for Singapore nationals. These carve-outs were created as part of Fair Trade Agreements.

The H-1B Application Cycle Only Opens Once Per Year.

H-1B applications are accepted each year beginning on the first business day in April. Applicants who recieve a visa will be eligible for work only on October 1st of that year. This means that there is a 6-month lag period between application submission and the initiation of legal employment. Therefore, companies should consider filing an application long before an employee’s expected start date.

H-1B applications can cost more than $1500.

Every H-1B applicant must pay a base fee of $325. Most applicants are subject to an additional fee based on the number of employees at their respective companies. For companies with <26 employees, this fee is $750 per petition. For companies with >25 employees, this fee is $1500 per petition.

H-1B Visas Typically Last at Least Three Years.

H-1B visas grant a stay of 3 years in the U.S., but can be extended to 6, or even 10 years in some circumstances. Because the specifics of the extension process are often unique, H-1B holders should discuss the possibility of extension with their employers prior to the end of the 3-year mark. Of note, extended stays are commonly granted if the visa holder is in the process of applying for permanent residence.

Alternatives to H-1B Visas Should Always be Considered.

Given the difficulty of being selected for an H-1B visa, it is worthwhile to consider alternative routes for legal employment in the US. Commonly considered alternatives include the TN, O-1, and L-1 visas. The TN visa is open to Canadian and Mexican nationals in specific fields. While it is possible to apply for permanent residence while on an H-1B visa, foreign nationals on a TN visa are not permitted to apply for permanent residence while the TN visa is active. The O-1 visa is for those with extraordinary abilities, and can be exceedingly difficult to acquire. Multiple recommendations from other experts in the field are required to demonstrate the individual’s exceptional skill. Lastly, the L-1 visa allows foreign nations to transfer to the US office of a company for which they have already been working for more than 1 year. While the H-1B visa is typically considered the most desirable, the above alternatives may be appropriate in specific cases.