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H1-B visa cap and requirements

H1-B visa cap and requirements

It goes without saying that the H-1B visa is one of the most popular visas available. It’s easy to see why this is the case when you consider the relatively simple eligibility requirements, the long duration of stay, and the visa’s portability. The H-1B cap, on the other hand, is a major impediment to obtaining this visa. This article will explain why the H-1B visa has an annual cap, how it works, and what you should do if you are chosen.

The H-1B Cap’s Timeline

The H-1B cap is a numerical limit imposed on the number of foreign workers authorized to work in the United States under H-1B status each year. The Immigration Act of 1990 established the H-1B cap. The act was intended to allow non-immigrant visa participants to be employed by a US employer. The cap was implemented on October 1, 1991, and reached its peak of 65,000 in 1997.

The American Competitiveness and Workforce Improvement Act (AC-21) of October 1998 sought to raise the cap in order to meet U.S. hiring needs. The act was passed, temporarily increasing the number of available H-1B visas from 65,000 to 115,000.

The quota was increased to 195,000 by the 21st Century Act in 2000 to meet the increased demand for workers. This number, however, did not remain at 195,000; in 2004, the H-1B quota was reduced to 65,000 visas available.

The H-1B visa program

The cap was reached less than five months after the opening date in 2004. Since then, the cap has reached its maximum within months of being opened. The H-1B Cap currently reserves 6,800 of the 65,000 H-1B1 visas for citizens of Chile and Singapore. This is an exception because Chile and Singapore are included in the free trade agreement.

Any unused H-1B visas from the Chile and Singapore categories are carried forward to the following fiscal year. These H-1B visas are distributed during the first 45 days of the following fiscal year, allowing the USCIS to grant over 65,000 H-1B visas.

The Cap of the Master

Furthermore, anyone with a master’s degree or higher (advanced degree) in their field will have their petition added to the master’s cap. This is in addition to the 20,000 slot limit (essentially bringing the total cap to 85,000 available visas). Petitions for those with advanced degrees will be chosen from among all other petitions.

Those who are not chosen will be re-entered into the regular cap of 65,000, which will be reached later. This means that your petition will have two chances of being chosen. This is the only way to improve your chances of being selected under the H-1B cap.

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The following are the three main requirements for the master’s section of the H-1B cap:

You must hold a master’s degree from a university in the United States.
A nationally recognized agency must accredit that institution.
Petitions The institution must be either public or non-profit. H-1B Cap exemption

There are several ways to be H-1B cap exempt. Employer in the United States falls into one of the following categories:

Institution of Higher Learning:

A non-profit organization associated with a higher education institution.
Government or non-profit research organization
Those who will work in Guam or the Northern Mariana Islands. (Valid until December 31, 2014).
If the beneficiary has previously received an H-1B cap exemption, he or she will not be subject to the cap. The USCIS will continue to process the following with cap exemption:

  • Current H-1B visa holders may extend their stay in the United States.
  • The employment situation of an H-1B visa holder has changed.
  • H-1B visa holder changes jobs
  • H-1B visa holder collaborating with a second H-1B visa holder
  • Students with F-1 visas who want to file for an H-1B visa can apply for Optional Practical Training (OPT). This allows the student to work in his or her field for a year. Following the original 12-month period, there are two additional months of grace. The time and experience gained in the United States while on OPT can be useful when reapplying for an H-1B visa.

H-1B Cap Procedure

Your employer must file your H-1B petition during the cap window, which begins on the first business day of April of the year in which you wish to work. Because the USCIS will not accept your petition earlier, and the cap usually ends as soon as it is filled (if the cap is filled in less than a week, the cap will close 7 days later), you should submit your petition on April 1st.

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Here’s a quick rundown of what happens after the H-1B cap has been reached:

The USCIS monitors H-1B petition filings and determines when it has received enough petitions to meet the congressional cap.
Once the date is determined, the H-1B petitions received by the USCIS on that date will be randomly selected by a computer.
The 20,000 petitions will be chosen at random from those submitted to the master’s cap. Those who did not make the cut will be re-entered into the regular cap.
The 65,000 petitions for the regular cap will be chosen at random.
H-1B petitions that are not selected by the computer generator will be rejected and returned, with a refund of the filing fees paid.
Petitioners may resubmit H-1B petitions during the next available period (i.e. the next fiscal year).
Any H-1B petitions received after the USCIS deadline will be rejected, unless the petition is exempt from the H-1B quota.

In some cases, a person may be better suited to apply for an L1 visa. While the two have significant differences, L1 visas and H-1B visas have some similarities.

Superior Processing

One frequently asked question is whether premium processing affects the H-1B cap. Premium processing is an optional service offered by the USCIS that allows most visas and green cards obtained through the I-129 and I-140 petitions to be expedited from a six-month average to only 15 calendar days.

While this may appear useful at first glance, there are several reasons why premium processing may not be as beneficial as you may believe:

Premium processing does not increase your chances of receiving an H-1B visa.
If you are chosen for the H-1B cap, premium processing will not increase your chances of approval.
During the H-1B process, strict deadlines must be met. You must file your petition in the first week of April, and you cannot start working until the first business day of October of that year, which is six months later. Even if your petition is approved in 15 days, you must still wait six months.

If you have been issued a Request for Evidence (RFE) and have a limited time to re-submit your petition, H-1B cap premium processing can be beneficial. Speak with your immigration attorney to determine whether premium processing is worthwhile.

If the USCIS does not process your petition within 15 calendar days after you have chosen premium processing, you should be issued a refund and your petition should be processed normally.

Furthermore, in the past, the premium processing service for the H-1B visa has been suspended so that those without it can be processed. Keep an eye on the USCIS website for the most recent information.

What Comes Next?

The USCIS will process your petition if it is chosen. Keep in mind that being chosen for the H-1B cap does not guarantee that your petition will be approved. It will first go through a preliminary process to determine whether your petition contains the necessary evidence and whether all of the information is accurate, consistent, and complete.

If it fails this test, it will almost certainly be rejected and returned to you with no refund. If this is the case, you may be able to simply correct the error or include the necessary evidence and refile the petition under certain conditions. However, you may be required to file in the following year.

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If your petition is missing evidence, you may be issued an RFE. In that case, you should bring it to your immigration attorney so that a proper response can be sent within the time frame specified.

If your petition passes the first stage and advances to the second, it will be reviewed by an immigration officer to determine whether you and your employer meet all of the H-1B visa requirements. If it fails at this stage, it may be denied, which means you’ll have to either appeal the decision or file a legal motion, neither of which should be done without the assistance of an experienced attorney.

However, if your petition passes this second stage, it will most likely be approved, and you will be able to begin working as an H-1B employee on October 1st of the year in which you applied. If you are outside the United States when your petition is approved, you may be required to attend a consular interview. Consult with your immigration attorney to determine whether you need a consular interview.

Submission Guidelines

To avoid outright denial, registration has only a few rules.

Your registration must be submitted between March 1, 2023 , at noon E.S.T., and March 18, 2023 , at noon EST. Outside of this time frame, USCIS will not accept registrations.

Each sponsor is only permitted to submit one registration for each beneficiary. If a single sponsor submits more than one registration for the same beneficiary, all of those registrations will be considered invalid and will be denied.
A single sponsor, on the other hand, may submit registrations for multiple beneficiaries, and a single beneficiary may have registrations submitted by multiple sponsors.

Employer Documents and Information Required for Each H-1B Registration:

  • Name of the employer
  • FEIN of the company (identification number)
  • Employer contact information Business address
  • Contact information for the company’s lawyer

Beneficiary Details The following documents are required for H-1B registration:

  • Name
  • Birthdate
  • Your home country and where you keep your citizenship
  • Number on a passport
  • Gender USCIS will also need the H-1B beneficiary’s educational information, such as whether they have a master’s degree or higher from a school in the United States.

When broken down, the H-1B visa 2023 -23 application process is relatively simple. Under the regular cap, USCIS chooses 65,000 registrations at random by computer. Under the advanced degree exemption, USCIS will select an additional 20,000 registrations. According to the Free Trade Agreement, 6,800 visas will be reserved for Chilean and Singaporean citizens.

How Will I Find Out If I’m Selected for the H-1B Lottery 2023 -2023?

When you view your registration online, you will notice one of four statuses associated with your case. They are as follows:

This simply indicates that you have successfully submitted your petition. Your status, however, may remain “submitted” until the end of the fiscal year. This indicates that USCIS is still considering your registration, but it has not been chosen or denied.
Selected: Your H-1B 2023 lottery registration has been selected by USCIS, and the sponsor can file an I-129 petition after April 1, 2023 . To ensure the smooth processing of all cap-subject cases, USCIS may assign different filing deadlines to different registrants. The filing deadline will be indicated on the notice by USCIS.

This indicates that USCIS did not select your registration. Remember that all registrations that haven’t been denied by USCIS will either be “Selected” or remain “Submitted” until the end of the fiscal year. As a result, if USCIS hasn’t chosen your registration, you won’t see “Not Selected” until October 1, 2023 .
Denied: This occurs when a sponsor submits multiple registrations for the same beneficiary. In this case, USCIS will reject all registrations for this beneficiary submitted by this sponsor.

Keep in mind that after March 18, 2023 , all registrations will be marked “submitted.” Some will change to “selected,” “denied,” or “submitted” around mid-March. If USCIS needs to increase the number of registrations for either cap during the fiscal year, it will choose from the “submitted” pool. The remaining “submitted” registrations will be changed to “not selected” after October 1, 2023 .

Order of the Master’s Cap

The regular cap is conducted first by USCIS. However, because USCIS has all cap-subject registrations, including those for master’s degree holders, some master’s registrations are selected in the regular cap without entering the master’s lottery. Following that, all unselected master’s registrations will be entered into the master’s lottery.

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H-1B Denial Rates by Fiscal Year

Fiscal YearDenial Rate
FY 20214%
FY 202013%
FY 201921%
FY 201824%
FY 201713%
FY 201610%
FY 20156%
FY 20148%
FY 20137%
 FY 20125%
 FY 20117%
Source: USCIS H-1B Employer Data Hub

The Trump administration managed to carry out what judges determined to be unlawful policies for nearly four years, and the policies imposed high costs on employers, visa holders and the U.S. economy, likely contributing to more work and talent moving to other countries. — National Foundation for American Policy

For F.Y. 2020, Tech Mahindra, a large I.T. company, for example, saw a 30% rejection rate, Infosys saw a 58% rejection, and Cognizant, another major company, saw a 48% refusal rate. “In F.Y. 2019 and F.Y. 2023 during the Trump administration, USCIS held or delayed H-1B applications for many I.T. services companies, which would have inflated the number of approved H-1B petitions for those companies in F.Y. 2021.” Below, you can see which companies came out on top regarding H-1B approvals.

The registration for the highly coveted H1B visa lottery was conducted between March 1 and March 18, 2023 . While there is no official announcement made by USCIS yet, attorneys and petitioners are receiving email notifications to check their registration accounts for selection notices. A sample notification is posted below. The email is being sent from  to the employer’s and/or attorney’s email address that was used for registration. (Updated 3/28/22)

H1B Sample Notification
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Overview of H-1B Visa Lottery 2023

The H-1B visa category was established by the government to allow skilled professionals with at least a bachelor’s degree to work in the United States in fields such as computer science, architecture, medicine, dentistry, engineering, accounting, and others. Employers who want to file H-1B cap-subject petitions for the fiscal year 2023 -2023 cap, including those who qualify for the advanced degree exemption, must first register electronically and pay the associated $10 H-1B registration fee. Each employer is only allowed to submit one entry per H-1B employee. If their application is chosen, the employer must certify that they will file a complete H-1B petition.

Wage Level Selection Rule Is Withdrawn by USCIS for Fiscal Year 2023 -23

You may recall that the USCIS delayed the Trump administration’s January 8th H-1B Lottery Rule, which sought to prioritize cap candidates at higher wage levels until December 31, 2021. The Biden Administration delayed the effective date until December 2023 in order to thoroughly review it, but after a legal battle, the government removed the rule entirely from the Federal Register. As a result, the H-1B 2023 lottery is based on a standard random selection process rather than a priority system based on wage levels.

What is the prevailing rate?

The prevailing wage is the average wage paid to employees doing the same or similar jobs. As with the H-1B visa, most employment-based visas require an employer to pay the prevailing wage as a bare minimum. Under the Occupational Employment Statistics (O.E.S.) program, the Department of Labor (D.O.L.) provides the prevailing wage figures that employers will use during the Labor Certification Application (L.C.A.) process.

Eligibility Specialty Occupation Requirement

To be eligible for the specialty occupation criteria, the H-1B job must meet one of the following criteria:

A bachelor’s degree or higher, or the equivalent, is required for the position.
The degree required for the H-1B job is considered standard in the industry.

Due to the position’s complexity, it can only be performed by someone with a degree.
Because the skills are so specialized, it is common for the employer to require a degree or equivalent for the position.

What if I don’t qualify for the H-1B Visa Lottery 2023 ?

If you have determined that you are ineligible for an H-1B visa, consider applying for an H-2B visa or even an L-1 visa. An L-1B visa is a nonimmigrant visa option that allows employers in the United States and abroad to transfer personnel from foreign offices to operations in the United States for up to five years.

The J-1 visa could also be used as an option. The J-1 is not tied to a specific employer, but rather to a government-approved program. Students, doctors, counselors, and nannies are just a few of the many occupations that can benefit from this visa.

What exactly are Cap-Exempt Petitions?

A cap-exempt petition is one that has previously been counted against the cap by USCIS.

It could also be one that was used to extend or change the terms of an H-1B worker’s stay in the United States. It is worth noting that the USCIS does not require that some positions with qualified workers be subject to the annual quota, even if the petitioner is already counted against it.

However, there are three major occupational categories that are considered cap-exempt from the start:

  • Jobs in a higher education institution
  • Positions in non-profit organizations affiliated with a higher education institution
  • Government Research Center Jobs
  • The existence of cap-exempt jobs may lead some to believe that they can simply petition under a cap-exempt job and then switch once in the country to avoid the annual cap.

It is important to note, however, that you must have that employer file another petition whenever you change jobs. If the employer is not exempt from the cap, USCIS will place the petition in the H-1B lottery. You will be unable to make this transfer if it is not selected or is denied. As a result, changing from a cap-exempt to a cap-subject petition to avoid the H-1B cap is not an option.

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What Is the Process of Premium Processing?

Premium processing service allows for the expediting of an employment-based petition/application, usually within 15 days. The service charge is $2,500.00.

It is important to note that paying for premium processing only shortens the time it takes to process your I-129 petition. It does not make you cap-exempt or guarantee you a spot in the H-1B lottery for 2023 . If your petition is approved, your start date will remain October 1, 2023 , as with all other applicants.

Fees for H-1B visas in 2023 -2023

The fee structure changed from previous years with the implementation of the electronic registration system last year. To enter the H-1B 2023 lottery, employers only need to pay a $10 registration fee. However, if an alien is registered, their employer is responsible for the following fees:

However, if an alien’s registration is chosen, their employer will be responsible for the following fees:

FeeAmountResponsible for Fee
Registration Fee$10Employer
Premium Processing (optional)$2,500Employer or Employee
Public Law 114-113 Fee$4,000Employer
Basic Filing Fee$460Employer
USCIS Anti-Fraud Fee$500Employer
ACWIA Education and Training Fee$750 (less than 25 employees)  $1,500 (more than 25 employees)Employer
Attorney FeeVariableEmployer

Here’s one scenario to illustrate how the fee would be applied to a foreign I.T. firm.

Company X has more than 50 employees and has more than 50% of people on the H-1B visa. If they are filing for the H-1B visa with premium processing than they would be responsible for the base ($460), fraud fee ($500), training fee ( $1,500 if applicable), Public Law 114-113 fee ($4,000), premium processing fee ($2,500 if applicable), and attorney fee.

Remember that the Public Law fee is only applicable to employers with more than 50 employees. Also, more than half of those employees must be H-1B holders for the fee to apply. Speak with your immigration attorney to determine precisely which fees should be paid.

What to Do After Filing H-1B Petition?

Form I-797C, Notice of Action is issued by USCIS to communicate information pertaining to receipt, rejection, transfer, reopening or an upcoming appointment. should you be selected in the lottery. In the example below (disclaimer – names, IDs and personal information has been changed for privacy) you’ll see it has the title Fiscal Year 2023 Selection and then under it has the company, employer identification number, the person the registration was submitted on behalf of and the confirmation number. If selected, the next paragraph will say “This registration was selected toward the number projected as needed to reach the congressionally mandated cap (regular cap).”

In the next sentence you will see what dates the company needs to file the corresponding H1B petition in. Be aware, no other beneficiary apart from the one identified in the i-797C may have a petition submitted for. The petition should also include the start date of October 1, 2021.

I797C Notice
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If USCIS selects your registration in the H-1B 2023 lottery, your employer must file a petition to proceed to the adjudication stage, which means it will be processed. Your H-1B case will be approved, denied, or rejected by an immigration officer. If it is accepted, you will have one of two choices:

Wait until October 1, 2023 , for USCIS to activate your H-1B status once you begin working. This option is only available if you are already in the United States under a different nonimmigrant visa status and can keep it until you begin working.
If you are currently outside the United States or your current nonimmigrant status is set to expire before October 1, 2023 , you must make an appointment with the United States Consulate or Embassy in your home country and go through consular processing.

Consular Services

When you arrive for your appointment, you must have already completed and paid for the DS-160 online nonimmigrant application. Bring a printout of the confirmation page as well as the payment receipt. The DS-160 is priced at $190.

You may be required to attend a one-on-one interview with a consular officer.

Before entering the country, USCIS reserves the right to interview anyone. Also, because of the recently increased regulations and scrutiny surrounding the H-1B, it is prudent to expect an interview.

The officer will ask you basic questions about yourself, your job, your employer, and your travel history during your H-1B interview. The best advice is to respond quickly and honestly to all questions. Saying “I’m not sure” is always preferable to lying, which could have serious consequences in the future.

In-person interviews for H-1B visas are no longer required until 2023 .

On December 23, 2021, the US Department of State (D.O.S. ), in collaboration with the Department of Homeland Security (DOH), announced that in-person interview requirements for H-1Bs (as well as H-4, L, O, P, or Q visas) would be temporarily waived through the end of 2023 .

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First-time applicants must meet the following requirements to be eligible:

Obtaining a visa in their country of origin or residence
You must be a citizen or national of one of the countries that participates in the visa waiver program (V.W.P.)
I’ve never had a visa denied (exceptions are made if the denial was reversed or waived)
previously visited the United States with permission granted by the Electronic System for Travel Authorization (ESTA)
Applicants who renew their visas within 48 months of their expiration date are eligible for the dropbox process.

Avoid Making These Common H-1B Filing Mistakes

There are several issues and filing errors that we see repeatedly that can impede H-1B approval.

Making the Wrong Account Type

One of the most common errors USCIS discovered with H-1B registrations was the creation of the incorrect type of account. There are three different types of online accounts that can be created:

Applicant/Petitioner/Requestor Account: This account is used by individuals to prepare and submit applications, petitions, and other benefit requests. This is not the correct account type for submitting H-1B registrations.
Attorney/Representative Account – This account is intended for attorneys or representatives to use to submit H-1B registrations on behalf of their petitioner clients. You can also use this account to file a Notice of Entry of Appearance as an Attorney or Accredited Representative (Form G-28).
Registrant Account – If you are a petitioner seeking to participate in the H-1B process, you should create this type of account.
Incorrect I-129 start date selection

During the filing process, applicants may select the incorrect start date on the I-129. To avoid having your petition denied, consult with your attorney to ensure that all dates, wages, and essential details are correct.

Job Description Is Incomplete

It is best to have your job description thoroughly reviewed by a qualified H-1B visa lawyer to ensure that it meets all of the necessary criteria.

Entries that are duplicates

Petitioners are limited to “one registration per beneficiary per fiscal year.” Employers should not file more than one petition for an employee as a general rule. Assume that a second petition is required for an employee in relation to an affiliate company or subsidiary of the original petitioning employer. In that case, it is critical to demonstrate why both filings are required. The last thing you want USCIS to do is mark the filing as duplicate or send a Request for Evidence (R.F.E. ), so consult with your attorney about the best way to handle this situation.

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Inadequate Filing

Submitting your petition after the deadline set by USCIS may result in a processing delay. To avoid causing this delay, file your petition with plenty of time to spare.

It should be noted that the USCIS service center only considers a submission timely if it arrives before the expected date. Because your petition will first arrive at a P.O. box, make sure to submit it well before the deadline to ensure that the service center has time to collect it.

Delays in Labor Condition Application (L.C.A.)

The iCert visa portal system does not always recognize the employer’s or company’s Federal Employer Identification Number, or FEIN. This happens because no pre-verification was performed before the L.C.A. was submitted.

Unacceptable Mode of Delivery

The manner in which petitions are submitted is very important to adjudicating service centers. If you deliver your petition by hand or another unconventional method, your petition may not be processed.

To ensure that you are using an approved delivery method, send your petition via the US Postal Service, FedEx, UPS, or another bonded delivery service. Consult your immigration attorney to find out which services are bonded.

Choosing the Incorrect Service Center

The final issue that frequently arises is filing with the incorrect service center. Petitions that do not include the required fee will be denied, and those that are sent to the incorrect service center will be processed incorrectly as well. Make a separate check for each filing fee and sign all checks before mailing.

H-1B Challenges for 2023 -2023

Because of the specific nature of the immigration process, complications from unusual circumstances can arise quickly. Working with an immigration attorney can help you determine whether these issues apply to you and what you can do about them.

If you are the company’s founder, co-founder, or sole proprietor, you will be fulfilling the roles of both the employer and the employee, which the USCIS does not accept. If the structure of your company allows a board of directors to pay you instead of you paying yourself, you may be able to obtain an H-1B visa as a business owner.

You can, however, start a business on an H-1B visa. First, you must create an entity that controls your salary, tasks, and employment status, such as a board of directors or a CEO. The entity must then petition on your behalf. An H-1B visa cannot be self-petitioned.

Another issue arises when the employer who filed the petition on your behalf is a small business. The L.C.A. has specific rules regarding how much an employee can be paid. You will be unable to file if your small business lacks the capital to meet these requirements and pay the petition filing fees.

Denial of H-1B Visa 2023 -2023

The USCIS frequently denies H-1B visas to those who are deemed unqualified. However, if USCIS selects your petition in the H-1B 2023 lottery, you can improve your chances of approval by taking the necessary precautions.

The first thing to understand about this process is that it has two refusal states: rejection and denial. These are dependent on the two-step approval process that each H-1B petition goes through. The first step is to have an immigration officer review your case to determine whether:

  • Your information is complete, consistent, and correct.
  • You have presented sufficient evidence and documentation.
  • Your employer has paid the necessary fees to the appropriate authorities.
  • Notice of H1B Rejection
  • Example of an H-1B Rejection Notice
  • If your petition does not pass this stage, it will most likely be rejected without a refund by USCIS. Fortunately, re-filing with the assistance of an experienced H-1B attorney is frequently the solution to this problem.

Assume, however, that your petition passes this stage. In that case, the case will proceed to phase two, where the officer will determine whether your evidence, background, occupation, and qualifications meet the H-1B visa requirements for 2023 . Otherwise, you may face an H-1B denial. Re-filing may not be an option in this case.

Legal Disputes

Petitioners may file legal motions for an unfavorable outcome on rare occasions. Petitioners can make two major motions in this case:

Reconsideration motion: Consider this option if you and your attorney believe that the immigration officer who is reviewing your case wrongfully denied your H-1B petition.
Reopening motion: When you have obtained new evidence or documentation to support your case, it should be evaluated alongside the primary evidence.

In contrast to legal motions, which work with the evaluating officer, an appeal goes through a third party, the Administrative Appeals Office, for an unfavorable decision. Unfortunately, the USCIS will usually send you a denial notice with a line prohibiting you from filing an appeal.

Requests for Evidence for H-1B Visas in 2023

The USCIS will occasionally send a Request for Evidence (R.F.E.) rather than deny your petition outright. If the evaluating officer believes that some supporting documentation would help clarify your case, an R.F.E. is usually the best option. If you receive an R.F.E., you must respond within the time frame specified—usually up to three months. There are several ways to respond to this:

Complete response: This means you submit all of the requested evidence along with your response.
The most common responses are partial responses. In a partial response, you only submit a portion of the requested evidence, either because you do not want to present it all or because you do not have the requested evidence.
There was no response: You are free to withdraw your application at any time.

In any case, your first step should be to take your R.F.E. to an immigration attorney to determine your next steps. For example, the USCIS may be questioning your employment legitimacy, your relationship with your employer, the nature of your specialty position, or even your degree credentials. The response should fully explain why the submitted evidence addresses all of the issues raised by the USCIS.

Amendments to H-1B Visa Requirements for 2023

In a few cases, you will need to have a new I-129 petition filed on your behalf. These include, among other things, changing jobs and extending your H-1B status. If you stay with the same employer but some aspect of your position changes significantly, your employer may need to submit an H-1B amendment so that your petition on file reflects the most accurate information.

The general understanding is that USCIS requires an H-1B amendment when a material change occurs. A significant change in your job duties or location is referred to as a material change. For example, if you were promoted on your H-1B, you may or may not need to file an amendment. It all depends on whether your job responsibilities have changed. Simply ensure that your new position meets the same H-1B requirements as your previous one and is relevant to your degree.

If you have an I-140 on file for an employment-based green card and are changing jobs, make sure that everything regarding the job you are using for your immigrant visa is in order.

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The Grace Period

If you are currently in H-1B status and lose the job that provided you with your status, this could complicate your immigration journey.

H-1B visa holders are granted a 60-day grace period that begins the day your sponsor no longer employs you. USCIS allows you this time to find a new H-1B sponsor, change your status to a different visa, or prepare to leave the country.

What About H-1B Lottery 2023 Winners’ Spouses?

In 2015, the Obama administration issued a rule allowing those with H-4 visas (spouses and dependents of H-1B holders) to obtain employment authorization to work in the United States as long as their H-1B holder had a pending I-140 petition for a green card. The Biden Administration has maintained the rule and proposed legislation to make it permanent, with the only way to repeal it being a law passed by Congress.

H-1B Visa Updates 2023 -2023

As previously stated, the Department of Homeland Security withdrew the Trump Administration’s Prevailing Wage Rule, which will not apply during the H-1B lottery season in 2023 .

The regular cap would be selected first, followed by the H-1B advanced degree pool. In the event of a successful wage survey, USCIS would instead use the highest corresponding O.E.S. wage level. If this system is implemented, the I-129 Form will be modified to collect information on wage levels.

In the past, supporters of this rule argued that it encourages H-1B employers to offer higher wages or to petition for positions requiring higher skills. Keep an eye on our blog to stay up to date on any changes to H-1B 2023.

Frequently Asked Questions About the H-1B Visa in 2021

The following are some frequently asked questions about H-1B visas.

Can I apply for an H-1B visa on my own if I want to work in the United States?

To apply for an H-1B visa, you must have a job offer from a U.S. company or organization. If you own a business, you must create an entity within your company that controls your employment. The petition must be filed on your behalf by that entity.

Can I get an H-1B visa if I have an Associate’s (two-year) degree and one year of engineering experience?

To be eligible for an H-1B visa, you must have a U.S. bachelor’s (four-year) degree or its equivalent. In terms of work experience, three years of work equals one year of university. For example, if you have six years of work experience and two years of college, you may be eligible if both your work experience and your degree are relevant to your occupational title.

I am currently employed as a teacher in a public school system. Is the annual quota applicable to schools?

Only after 2006, if the school district has an approved petition based on the university cap exemption.

Are there provisions for the continuation of H-1B petitions if the company has a restriction?

In this case, there is continuity. When a new entity takes over the interests and responsibilities of the originally approved employer and the employment conditions remain the same, an amended H-1B petition is not required.

How does my employer fulfill the I-9 verification requirement under Section 105 portability provisions?

This is analogous to the 240-day grace period provided by 8 C.F.R. section 274.12(b)(20), which allows employment with the same employer for up to 240 days following the filing of an extension petition.

Can I file duplicate or multiple petitions? What will happen if I do?

Employers may not file duplicate H-1B visa petitions for the same employee more than once. To ensure fairness, USCIS will deny multiple or duplicate petitions filed by an employer for the same H-1B worker.

Will USCIS refund my filing fees if I file twice?

You will not be reimbursed for these filing fees. USCUS will only issue a refund if one of the following conditions is met:

USCIS has requested an unnecessary form with a fee.
You submitted a fee that was higher than what was specified.
The USCIS does not process a petition filed with premium processing within the 15-day time frame.

Where should I send my H-1B petition?

Your lawyer should know which service center to file with based on the beneficiary’s work locations as specified on the petition application.

When is the H-1B visa lottery for 2023 ?

The H-1B visa submission period for 2023 -23 is March 1–28, 2023 .

What are the benefits of starting early?

There are numerous advantages to planning ahead of time. As with most situations in life, planning ahead of time allows you to better respond to challenges down the road. Employers can start thinking about which of their employees may require H-1B cap-subject filings. Foreign nationals and their respective employers should collaborate throughout the process to ensure that all criteria are met.

Why should you hire an attorney to help you with the H-1B registration process?

First, the USCIS will not consider a properly filed cap-subject H-1B petition unless it is based on a valid, selected registration for the same beneficiary and fiscal year.

Proper H-1B registration entails ensuring that the candidate is correctly classified under the master’s or bachelor’s cap. Despite having master’s degrees from the United States, only a few people are eligible for the master’s cap. Furthermore, a bachelor’s degree is only equivalent to a certain number of years of work experience. After submitting H-1B registrations, applicants are unable to make changes. If the case is selected for filing, USCIS will reject incorrect H-1B registrations.

Second, while petitioners can register multiple aliens in a single online submission, they can only register one beneficiary per fiscal year. Assume a petitioner submits multiple registrations for the same beneficiary in the same fiscal year. In that case, all registrations related to that beneficiary filed by that petitioner for that fiscal year will be considered invalid.

Third, petitioners have a limited time to ensure that their cases have the necessary strategies and documents. Having a solid case foundation from the start is critical, regardless of whether the case is ultimately chosen.

Hiring a qualified attorney to ensure that stage one of the process is handled correctly will help to avoid problems if the case is chosen for filing.

In 2023 , how long can you stay on an H-1B visa?

The USCIS grants the visa for up to three years, with the option of extending it for up to six years. In exceptional circumstances, the government may grant a stay of more than six years. This is usually done in conjunction with a pending I-140 petition in order to keep your status.

What fees is my employer liable for?

According to immigration law, the employer is responsible for paying the training fee and the fraud fee, if applicable.

Is premium processing available?

Yes, you have the option of paying an extra $2,500 for premium processing.

Is it possible to avoid the cap if I file for premium processing?

Filing for premium processing will not exempt you from the cap. Premium processing is simply a method of speeding up the process. The USCIS explicitly guarantees 15 calendar days for processing those petitions, or the service fee will be refunded.

Who is in charge of determining the H-1B Visa cap amounts for 2023 ?

The current annual cap for the H-1B visa category is set by Congress. Also, keep in mind that the USCIS has set aside 6,800 visas for Chilean and Singaporean citizens as a result of the Free Trade Agreement.

Under certain conditions, certain H-1B workers performing services for the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the cap.

What exactly is a Labor Condition Application?

When you file your petition, your employer must certify and send a Labor Condition Application. A copy of this document will also be accepted by USCIS. Always keep the L.C.A. processing times in mind and plan your documentation accordingly.

To obtain an L.C.A., your employer must complete all four attestations required by this application:

The H-1B employee will be paid the prevailing wage for the requested position based on the geographic location of the position.

The employment of the H-1B employee will have no negative consequences for the employer’s current employees.
The employer’s current employees have been notified of the intention to hire the H-1B employee.
There is no strike or lockdown at the location where the H-1B employee will be working.
Finally, the L.C.A. protects current employees from interference with their employment. By attesting that your employment will not subvert or replace the work of current employees, you are telling the USCIS that your employment will benefit rather than harm the US job economy.

Please keep in mind that if USCIS certifies an application for multiple workers, you must provide the name and case receipt number of any worker who has previously used the L.C.A.

DOES USCIS allow me to have more than one sponsor for my H-1B visa?

If you intend to work for more than one employer as a foreign worker, each one must file a separate petition, according to current regulations. However, if USCIS approves both petitions and you choose one employer but later decide to switch to the second, no new petition is required.

If you choose to transfer your employment to a company that has not yet filed a petition, you must have that company file a new petition on your behalf.

How can I expedite or speed up my H-1B transfer?

An H-1B transfer must be handled in the same manner as a new petition. The main distinction between a regular H-1B filing and a transfer is that a transfer is not subject to the cap because it already has H-1B status. As a result, premium processing may be an effective way to reduce the time it takes to process your H-1B transfer in 2023 .

After USCIS approves my status, can I work for my employer anywhere in the country?

When USCIS approved your H-1B visa, they took into account the specific employment location, qualifications, and local wage.

During your employment, if your worksite changes, you must submit an amendment with certification for the new location. In some cases, you may be exempt from filing the amendment; however, if the terms of your job suddenly change, you should contact your lawyer.

Is there a reason why some H-1B petitions take so long?

Many people have questions about this subject. Assume you submit two petitions at the same time. That does not guarantee that USCIS will approve it in the same time frame.

Why? Because each USCIS service center has a different workload for H-1B visas in 2023 , it’s difficult to predict when the paperwork will be processed. Premium processing is recommended for cases where time is of the essence.

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