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H-1B FAQs

860272_paper_pile.jpgNext week, U.S. Citizenship and Immigration Services (USCIS) will begin to receive the H-1B petitions for the 2017 fiscal year. Although only 65,000 of these petitions may be approved (with an additional 20,000 reserved for applicants with U.S. Master’s degrees), USCIS projects that it will receive more than 100,000 petitions.

By statute, USCIS will accept H-1B petitions for the first five business days in April. If the 65,000 cap is reached during that period (which it certainly will be), any petition received after that timeframe will be returned to the employer. To help ensure that your case is successful if selected, read on for the answers to four of the most commonly asked questions about the H-1B process.

**Disclaimer: The following tips are for general knowledge and do not constitute legal advice.

1. How Do I Know If I Am Cap-Exempt?

Not every petition will be subject to that 65,000 cap, which means the petition could be filed at any time of the year regardless of how many H-1B visas have been approved. There are two main ways that a petition could be cap-exempt: the petitioner could be exempt or the foreign worker could be exempt. Cap-exempt petitioners are institutions of higher education or related, affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.

There are many different types of cap-exempt employees. If the foreign worker was previously counted in the cap within the past six years, that person is likely cap-exempt. Workers who will perform their job duties in Guam or the Commonwealth of the Northern Mariana Islands are also cap-exempt, as are workers who are J-1 physicians with National Interest Waivers.

2. Can I Bring My Family?

If an H-1B petition is approved, the foreign worker may bring his/her spouse and children under the age of 21 to the U.S. as the worker’s dependents. The family members will need to obtain H-4 visas at the U.S. consulate in their home country.

3. When Can the Employee Start Working?

All cap-subject H-1B petitions must have an employment start date of October 1, 2016. The reason for this mandate is because that is the first day of the fiscal year and H-1B visas are allotted per fiscal year, not per calendar year. An employee may not legally begin working before the start date listed on the petition unless he or she has independent work authorization such as OPT. Even if the H-1B petitions is approved on May 1, the employee may not begin the H-1B work duties until October 1.

4. If My Case Isn’t Selected, Can I Try Again?

Yes. There is no prohibition on filing multiple H-1Bs in subsequent years. Some people are just unlucky and have to file two, three, or even four times before their H-1B petition is selected in the lottery. Given the number of petitions USCIS expects to receive, there will likely be thousands of people who receive their petitions back because they weren’t selected. The good news is that if a petition is returned, USCIS also returns the filing fees.

Additional Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012
Obama Signs Immigration Executive Order, ImmigRantings, June 15, 2012
Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012