H-1B Cap FAQs - FY2024
USCIS Announces FY2024 H-1B Cap Dates
USCIS ANNOUNCED FY2024 CAP DATES ON FRIDAY, JANUARY 27, 2023. HERE IS WHAT YOU NEED TO KNOW:
February 21, 2023, 12:00pm EST - Registrants (employers and their attorneys) will be able to create new USCIS accounts.
March 1, 2023, 12:00pm EST - March 17, 2022, 12:00pm EST - Initial registration period for the FY2023 H-1B cap lottery. During this period, prospective employers and legal representatives will be able to complete and submit their registrations using USCIS’ online H-1B registration system.
March 31, 2023 - USCIS will send notifications of selection via users’ myUSCIS online accounts.
General H-1B FAQs
When will I find out if my registration was selected in this year's lottery?
ANSWER: USCIS will announce on or around April 1st that it has completed the lottery of H-1B registrations and finished notifying petitioners whose registrations were selected. Your ImmiPartner legal team thoroughly reviews the selection notices for all applicants as they are received, and if your registration was among those selected, our team will notify you via email between April 1-7. For our corporate clients, you can also see the real-time status of your case via Bridge.
Is there anything new about the H-1B Cap lottery this year that I should know about?
ANSWER: Starting with FY21, USCIS implemented a new online registration process for H-1B cap cases that begins in the weeks leading up to April 1. While the registration window typically opens in mid-March, USCIS will announce the specific dates of registration for FY2024 and those details will be updated as soon as they are available. Companies file an online registration for each individual they seek to sponsor for a cap-subject H-1B petition. USCIS then conducts a lottery to select registrations. If a registration is selected, the company will be eligible to file a full H-1B cap petition for the individual named in the selected registration.
Will my case be filed with Premium Processing?
ANSWER: There is no Premium Processing (PP) for the registration portion of the H-1B lottery. However, after your case is selected for processing in April, whether it will be filed with PP depends on your company’s policy and whether USCIS will accept PP for lottery cases. USCIS, in its discretion, may temporarily suspend PP for certain case types. Please check with your HR representative if PP will be used for your H-1B cap matter, if it is available.
If PP is used, this means USCIS will respond to your filing within 15 calendar days after they have received the package.
What if I am not interested in moving forward with filing an H-1B application this year?
ANSWER: While you may be able to continue working under your current status at this time, please note that H-1Bs are only available in limited quantities at very specific times of the year, therefore we want to ensure you have as many opportunities to apply for an H-1B as needed to help ensure your continued work authorization. Please discuss your options and specific status with your legal team before making any final decisions.
What is the difference between H-1B “change of status” petitions and H-1B “consular notification” petitions?
ANSWER: A “change of status” petition enables your status to officially change to H-1B Specialty Occupation on October 1, without the need to leave the US to change your status. You must be present in the US during the entire duration your case remains pending. If you depart the US while your change of status petition is pending, the request to change status will be deemed abandoned and your case, if approved, will be approved as a Consular Notify petition.
A “consular notification” petition is where your status does not automatically change on October 1, and you will need to leave the US, obtain an H-1B visa stamp (if applicable) at a US consular post abroad, and return to the US using your visa stamp and H-1B approval notice in order to activate H-1B status.
The method of filing depends on where you are when we file the petition and how you plan to activate your H-1B status.
If you are currently in the US and will be in another valid status (e.g., F-1, TN, L-1) at least until October 1, we can file your H-1B cap petition as a “change of status” petition, meaning that your H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later.
If you are not in the US at the time the H-1B petition is filed, if you do not have another status valid until October 1, or if other situations (explained below) apply to you, we will file your H-1B petition as a “consular notification” petition. In this situation, the US consulate in your home country is notified that you will be going there to apply for an H-1B visa, and your H-1B status takes effect after you obtain the H-1B visa and use it to enter the US
How long will my H-1B status be valid for?
ANSWER: The initial H-1B petition is typically approved for up to 3 years, and your employer may petition to extend your status in the future until a total of 6 years in H-1B status has been reached. Please note that, due to filing constraints in some circumstances, your initial H-1B petition may be valid for less than a full 3 years. However, you will still be eligible for future extensions that will give you a total of 6 full years of H-1B status. Please note, any time spent in L-1 status counts towards the 6-year H-1B maximum.
How do my spouse and children get H-4 status?
ANSWER: If your family members are in the US with you, and in valid status, then their application for Change of Status to H-4 status can be filed concurrently with your H-1B petition. If you are reliant on Cap-Gap relief, the H-4 application(s) must be filed prior to your expiration date. Otherwise, they will have to apply for H-4 visas at the consulate (unless visa exempt)after your H-1B status takes effect on October 1, 2023. If your H-4 dependents are visa-exempt, then they can enter the US with you or after your H-1B status becomes effective.
Note that if you are not selected in the lottery, then your spouse will not receive the H-4 change of status. If your spouse is currently dependent on your present status, then they must change their status with you.
Can my spouse and children work in H-4 status?
ANSWER: H-4 spouses are allowed to file for work authorization when you reach an advanced part of the whole green card process, namely if you have an approved I-140 or if you have received a post-6th year extension of H-1B status. If you do not have a green card process in place, then it will likely take quite some time before your spouse can receive work authorization. Note that EAD applications take 3-8+ months to process with USCIS. Once approved and the card is in hand, your spouse can work. H-4 children are not allowed to work under this status.
When can I start the permanent resident (green card) process?
ANSWER: Technically, you may be eligible to start the green card process, regardless of whether you are in H-1B status or not.
Check with your employer to confirm whether you are eligible to initiate the green card process per the company’s immigration policy as many companies have internal guidelines for initiation of these applications. For example, your employer may require that you be employed with them for at least one year and hold good standing within your company before being eligible to proceed. If you are eligible and a client of ImmiPartner, your employer would initiate a green card project with us through our technology platform, Bridge.
Please remember there are significant travel restrictions at certain parts of the green card process for certain status holders (e.g., TN, E-3, O-1), so please discuss these with your ImmiPartner legal team.
It is my last year applying for the cap. What if I am not successful?
ANSWER: We wish you the best of luck in the upcoming lottery selection. We understand how important it is for you to retain your work authorization in the US. However, should you not be selected, here are a few things to consider:
If your work authorization and the authorized period of stay will be expiring soon, you may need to begin preparing to depart the US. Once your valid period of stay has expired, you will be placed on USCIS’ standard 60 days grace period for a majority of visa types. During this time, you will either need to transition into another eligible visa category to remain work authorized, or you will have to begin to prepare to depart the US within 60 days after your status has expired. Please do not hesitate to contact your ImmiPartner legal team to discuss your options.
If you were not selected in the lottery, please note that your dependent(s) status may also be at risk. If your spouse and children are dependent on your status, they will be placed on the same 60 days grace period if your status expires in the US meaning you will have 60 days to adjust to a new status or prepare to depart the US.
Though not a guarantee, if USCIS is unable to meet their required case amounts after the first round of selection, USCIS may institute subsequent rounds of selection to meet their required total. Your legal team will notify you if USCIS will pursue another round of selection and when that may take place.
If you are currently graduating from a Bachelor’s program and will be running out of work authorization before October 2023, you may consider returning to school to pursue a graduate degree to remain in the US. Graduate degree holders may be able to consider an alternate degree program that can help them remain in the US. Please reach out to your international student office and speak to your designated school official for more details.
If you have made significant contributions to your field of expertise and could be considered at the top of your field, you may be eligible for an O-1 visa which would allow you to remain and work in the US. Please reach out to your ImmiPartner legal team to have your case assessed for a possible O-1 visa. Please note that there is a high level of scrutiny on this visa category so your case may not be a good candidate if you are earlier on in your career progression.
Speak with your company’s mobility team/HR representative to see if there are job opportunities within your company located outside of the US that may support a future L-1A/L-1B application for you. Please note that this visa type would require one continuous year of employment outside of the US with an affiliated company or subsidiary.
Failure to be selected in this year’s H-1B lottery will not impact your chances for future H-1B lottery proceedings.
Could I get Cap-gap if I file for Consular Notification?
ANSWER: If you file your petition for consular notification then you will no longer be eligible for a bridge in work and stay authorization under the Cap-gap rule. Your work authorization will terminate with your OPT expiration. Therefore, if you intend to rely on Cap-gap you will need to file your petition as Change of Status which will have an effect on your travel plans after your petition is selected in registration and filed with USCIS in April 2023. Please see the travel section for further details on traveling after your H-1B cap petition is filed.
What document shows my H-1B status in the US?
ANSWER: The Form I-94 Arrival/Departure Record, a document generated when you enter the US, shows your status in the US. If your case is filed as a change of status, then the bottom portion of the I-797 H-1B approval notice will include a Form I-94, indicating that your H-1B status will take effect on October 1. The H-1B visa stamp in your passport is solely used to apply for entry to the US; it does not control your status once you are in the US. However, the H-1B visa stamp must be valid for you to enter the US in H-1B status after foreign travel.
Timing of the H-1B Cap Registration and Filing Process
When will ImmiPartner start preparing my case?
ANSWER: Our team will start reaching out to our corporate clients in January 2023 to remind you to start the process. You may be asked to update your profile information and also to complete an online intake questionnaire. On average, it should take approximately 15-20 minutes to review your existing information and upload any documentation required.
What happens once ImmiPartner receives all of my information and supporting documents?
ANSWER: Our team will gather the necessary information to submit your entry into the online registration system within the appropriate registration window. Our team will also begin preparing your application as soon as possible, in anticipation of you being selected in the lottery after the pre-registration process. In early April, our team will begin finalizing applications for filing (requesting new I-94s if you traveled, requesting new pay stubs, etc.) to be ready to submit your application within the filing window (April 1 - June 30).
How will I know if my legal team is working on my application?
ANSWER: ImmiPartner has partnered with Bridge to provide an online system that allows you to follow the progress of your case. This is available to you 24 hours a day, 7 days a week. Please feel free to check the status of your case through the platform and complete any outstanding tasks available to you.
Will my case be processed as a “Consular Notification” petition or a “Change of Status”?
ANSWER: Most H-1B cap cases are filed as a Change of Status filing as a matter of course, especially for individuals relying on Cap-gap relief and individuals who may be losing status/work authorization shortly. However, each case is assessed individually, and the processing is determined on several factors:
Do you simply prefer to have your case filed as a Consular Notification petition, where your status in the US is not affected until you go to a US consulate abroad, obtain the H-1B visa, and then enter the US to activate your H-1B status?
Are you eligible for a Change of Status filing, meaning will you be in valid status on April 1 through October 1?
Did you ever hold J status? If you were subject to the two-year residency requirement, proceed with either obtaining a No Objection Letter/Waiver to satisfy the requirement, or organizing documentation establishing that you resided in your home country for at least two years (not just outside of the US).
If you are subject to the two-year residency requirement and will not be able to obtain a J waiver prior to filing your H-1B, your case will be prepared as a Consular Notification to preserve your current status.
Are you subject to export license requirements?
Your legal team will review whether there are any other factors specific to your case that could affect your filing strategy. If there are any mitigating circumstances why you would not want your case to be filed as a Change of Status application, please alert your ImmiPartner team as soon as possible.
What can I expect as we get closer to April 1?
ANSWER: For those selected in the lottery, ImmiPartner aims to have all H-1B petitions complete and ready to be sent to the immigration service for delivery in April 2023 barring any unforeseen circumstances. The filing window will be open for 90 days for selected petitions, so applications technically will have until the end of June to be submitted. There is no need to worry about the status of your application, as your legal team will send you an email letting you know your application has been finalized for submission to USCIS. Additionally, rest assured that there is a multi-layer review process during the final stages. Please make sure to check Bridge for up to date information on where your case is in the process.
Is there a deadline to file an H-1B in the Cap?
ANSWER: Registration will be open for at least 14 days during March 2023. Once USCIS has announced the specific registration window, we will update that data here. All cases that want to be included in the lottery must register within the specified window. If selected in the registration, your employer will file your H-1B petition with USCIS during the filing window which opens on April 1 and ends on June 30.
How soon will I know if I have secured an H-1B number?
ANSWER: USCIS will run a lottery on the pool of registrations no later than March 31.
ImmiPartner will inform all those who are selected during registration during the first week in April. In addition, the status of your case will be reflected in Bridge.
Where will my approval package be sent?
ANSWER: ImmiPartner will be sending the approval notice to the recipient designated by your employer, which may be the company’s address. Please check with your company and legal team if you would like the approval notice sent elsewhere. We always double-check with the company regarding the approval package address before sending it out. We will also inform you of the courier tracking number when the package is sent out.
How soon will I receive the approval notice once my case is approved?
ANSWER: It can take up to a 2+ weeks for us to receive the original approval notices in our office from USCIS. We will then prepare the approval package. We process the approval notices diligently on a first in/first out basis. It will likely take a few weeks for us to process all of the approval notices, but if you have an urgent need to travel abroad and the original approval notice is required by the consular post you are planning on attending, please do not hesitate to contact us. Please note that there may be unforeseen delays with the US Postal Service so there is a chance your approval notice may take a bit longer to be received by our office.
Travel
Can I travel while my case is being processed?
ANSWER: If we are filing your H-1B petition with a request to automatically change your status to H-1B on October 1, you must be in the US at the time the petition is sent to USCIS and during the entire time the case is pending with USCIS. This will normally be from April 1 until mid to late July.
If you absolutely must travel during this time period, please let us know, and we can file a consular notification petition for you. Please note that if you choose the Consular Notification option, you may have to travel at your own expense, unless your company policy indicates otherwise, to activate your H-1B prior to your current expiration.
See more info on Travel under the FAQs related to your current visa category.
Are there any travel restrictions I need to be aware of?
ANSWER: For the time being, and absent any new policy guidance from the current administration, you should not expect additional or different scrutiny on the immigration front when you travel. However, given the COVID19 pandemic, it is strongly advisable for you to check any public-health related restrictions prior to travel as those requirements could develop quickly. We are keeping an eye on any possible immigration policy changes and will keep you all updated if any changes go into effect. However, we also recommend that you stay in contact with your legal team and advise them of travel plans so they could advise as needed.
What information will I need to get my H-1B visa stamped at a US Consulate abroad?
ANSWER: You will need a copy of the H-1B approval notice, which will be made available to you through the Bridge Team, and a copy of the petition. Although most US consular posts will accept a copy of the notice, in certain high-volume locations, the original notice is preferred. Once your case is approved, a copy of the petition will be made available to you and can be accessed by logging into Bridge. In addition, you will need to review the website of the US Consulate in your home country as to what specific documentation they require as every Consulate has different application procedures and requirements.
Is there any reason I should avoid traveling after April 1st?
ANSWER: If you require Cap-gap authorization to maintain permission to work until your H-1B is activated, you should request a change of status filing and defer your travel until after your petition is approved. Traveling before your H-1B application is approved will jeopardize your continued Cap-gap authorization. If you do not intend to rely on Cap-gap and need to travel post-April 1st, it would be advisable to file your petition as a Consular Notification matter.
I am currently abroad and my H-1B petition is being filed as a consular notification petition. Can I travel to the US after my petition is filed and while it is processing?
ANSWER: Visiting the US after the H-1B petition has been filed is possible, provided you have another valid visa status to use or you are a national of a country under the visa Waiver Program (commonly known as ESTA). However, travel may not always be practical or advisable. It is critical that your visits to the US comply with permissible activities under the visa category you are being admitted in. If you will be entering in business/tourist visitor status and not in a work-authorized status such as H-1B, E-3, or TN,permissible activities will only include tourism, attending business meetings or conferences related to your job ABROAD (NOT the US role that will start in October), and similar non-working trips.
Once your H-1B petition is accepted and entered into USCIS’ system, it is possible that an officer could ask you about it at the airport when you arrive as a visitor. If that happens, you will need to show evidence that you are coming only as a visitor for a short trip and that you will not be conducting any impermissible work activities in the US. A round-trip ticket (proof of plans to return to your home country) is essential. It may also be helpful to bring documentation of your intent to return home after your short US trip, such as a letter confirming your employment at your foreign job. Note that if you fail to convince the officer that you are coming just for tourist or business purposes, he/she could refuse you entry and ask you to return to your home country. This would not usually impact the H-1B, but it is a very unpleasant experience to go through.