H-1B Visa

H-1B Cap Filing

All NEW first-time H-1B filings (Employee never counted against Cap and Employer not Cap exempt). Beginning 2020, USCIS has implemented an electronic registration system for cap selection. Employers, or their authorized representatives, must submit an online registration for each proposed H-1B worker during an initial registration period from noon (ET) March 9 through noon (ET) March 25, 2021. If more registrations are received than the H-1B caps allow (there are 65,000 regular Cap spots, and 20,000 U.S. Advanced degree), the “registration lottery” is held. If your registration is chosen, you are selected into the Cap, and your employer will be able to file an H-1B petition on your behalf. If you are not chosen, your registration will be placed on a reserve list (wait-list) of candidates in the event that USCIS determines it requires additional registrations to meet the cap quota.

With the existence of two distinct Caps, and the implementation of the reverse selection order, USCIS will run the regular Cap registration lottery first to meet the 65,000 quota. Unselected registrants with U.S. master’s degrees or higher would then be entered for a second registration lottery for the additional 20,000 visas reserved for the master’s Cap. Thus, the lottery intentionally favors individuals with qualifying U.S. advanced degrees.

H-1B Transfer

Individuals already working in the U.S. may transfer their H-1B status to another employer. Technically, H-1B rules allow an individual to “port” their H-1B – meaning one can start working for the new employer without first receiving an approval – if they meet three criteria:

  • The most recent entry or approval was in H-1 status;
  • There has been no unlawful employment since the last entry;
  • The new employer is filing a bonafide application.

Despite the existence of portability, many individuals wait until the filing is approved before changing employer to guard against the possibility of denial of the H-1 transfer. While we can never guarantee an outcome in a specific government filing, we rarely see denials of such filings.

Assuming the person transferring their H-1B was previously counted against the H-1B Cap, there is no requirement to again count under the Cap. We only face issues with timing or portability if a Cap exempt H-1B holder seeks to join a Cap subject employer.

Cap-Exempt H-1B Petition

Like all major immigration rules, there is an exception to the H-1B Cap. Certain employers are considered “cap exempt,” meaning the sponsored employee does not need to be counted against the cap prior to starting work. There are four qualifying employers:

  1. Institutions of higher education: Defined by Federal statute, this category generally includes accredited public and not-for-profit colleges and universities.
  2. Nonprofit entities affiliated with an institution of higher education: This category includes 501(c)(3), (4), or (6) entities that have an ownership, operation, or attachment connection to institutions of higher education (see #1) or hold active educational affiliation agreements with such institutions.
  3. Nonprofit research organization: This category includes 501(c)(3), (4), or (6) research organizations that are primarily engaged in research.
  4. Governmental research organization: This category includes federal, state, or local entities who are primarily engaged in research.

Additionally, a cap-subject employer can file “cap exempt” if petitioning for an individual who will primarily work at a cap-exempt institution. And should a cap-subject employer file a concurrent H-1B petition for an employee who is working full-time for a cap-exempt entity, that employee does not have to be counted against the cap to receive concurrent H-1B approval.

H-1B Amendments

H-1Bs are location-, employer-, and job-specific, so changes to any of these elements may trigger a need to notify USCIS through the filing of an amendment. Clients should notify us in advance of any anticipated change so a timely filing can be made with USCIS. In some cases, an amendment is not required – for example where the employer moves its offices locally (within the same county or commuting distance); but additional wage notice is required. Conversely, an H-1B ceasing employment – for any reason – is a material change that requires notification of USCIS.

Premium Processing

In general, Premium Processing (PP) offers the benefit of a quick decision for those who require timely approval of their application in order to give notice to current employers of the job change. Only certain application types may use PP (and at times USCIS has suspended PP for various H-1B filing types; we will inform clients if a PP option exists).

PP offers an advantage specifically to H-1B filings as it dramatically speeds up case processing (Regular filing = 6+ months; PP = 15 calendar days). If USCIS issues a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), the 15-day processing time stops, and it restarts at day one when the response is received. The current filing fee for Premium Processing is $2,500.

Practice Note

PP is often used in new hire situations or when timing requires a quick decision. In certain cases, based on the timing of other applications or status issues, it can eliminate future filings and even save money.

Traveling after h-1B case approval

If one holds a valid H-1B visa, you only need to show the original approval notice on return to the U.S. If the visa has expired or a is different type, you will need to obtain a new visa at a U.S. consulate before returning to the U.S. *Note: Canadians do not require a visa – they just show the H-1 Approval or H-1 I-94.

Traveling while h-1B pending

The effect of travel on a pending application depends on a person’s current status. Depending on the timing and underlying status, the foreign national may not be eligible to re-enter the U.S. Please contact the attorney or paralegal working on your case prior to traveling to discuss the potential impact on your application.

H-1B Traveling Reminder

Always plan a visa application several months in advance to secure an appointment and ensure the consular website is visited both when booking and prior to leaving the U.S. to ensure all necessary documents are brought to the interview.

H-1B: What you need

While some of the information required for each petition will vary depending upon the particular circumstances, to help get you started, the following documents are required for every H-1B petition:

Passport biographical page
All prior U.S. status documents
Most recent I-94
Current resume
Degree certificates and transcripts
Most recent paystubs
Job title, detailed job description, salary, and location(s) of work
If dependants – include first three bullets for each dependant
Our Regular Process
Evaluate Case for H-1B Criteria
Gather Necessary Information
Prepare LCA (Register Employer with DOL, if Necessary)
Draft Petition
File Case
Receive Approval
If Outside of US, Obtain Visa
Our Cap Filing Process
Evaluate Case for H-1B Criteria
Gather Necessary Information
Submit H-1B Electronic Registration
Prepare LCA (Register Employer with DOL, if Necessary)
Draft Petition
File Case, if Registration is Selected
Receive Approval
If Outside US, Obtain H-1B Visa

"David and his firm represented a multinational tech company I worked for based in the Bay Area for 10 years when I left the company.  I found my way back to tech 2 years later and immediately recommended David and his team when my new employer had significant problems getting results from a large international immigration law firm.  David immediately won employees over with his hands’ on approach and he fixed all of the problem cases expertly and efficiently (as fast as he could given how slow USCIS moves!)!  He even recognized a fix for one of our executives the other firm had not contemplated.  We’ve been thrilled with the work and outcome his firm has delivered the last three years!"

Snr HR Director, Mobile Tech Dev Company

"I first worked with David Brown and his team starting in 2012 with Brown took over for our San Francisco based immigration law firm.  He immediately set our mind at ease with hiring a Midwest law firm, with his attention to our employees and excellent work.  After working with Brown for four years I asked my new employer to transfer their cases soon after I arrived.  David immediately found some issues that were concerns for us and helped us resolve some problems as soon as he took over.  We value the work Brown does to keep our employees in status and focused on the task at hand, not their immigration process!"

HR Mgr, previously in Fin Tech, now in Pharma

“I approached the Green Card process with much trepidation and fear, and it was also a new thing for my management team to deal with. David held our hands throughout the process and was always available for questions and advice pre-green card and after green card. The process went very smooth and I recommend to help with future immigration issues for our staff. He’s since helped our organization tremendously.”

Academic in NY

“Border applications are very nervous occasions for me. I’ve had my share of difficult immigration inspectors. David prepared a very professional looking submission and coached me on what to say, and what not to say. He even selected a port that was friendly to my type of application. Despite how difficult the Management Consultant application process can be, and having been denied previously, he made it a smooth and easy experience and I thoroughly enjoyed my consulting project. I’ve recommended David’s team to countless people since.”

Non-profit consultant, CA