The H-1B cap season has arrived for fiscal year 2023 with the online registration window opening on March 1^st. As employers decide which candidates they wish to sponsor and register in the H-1B lottery selection process this year, it is important to consider the congressional H-1B cap limitation and whether a candidate is cap-exempt or not.

Congress sets the H-1B cap limitation at 85,000 visas per fiscal year. With every new H-1B lottery there is an increasing amount of registrations submitted in the hundreds of thousands, so it is important to understand what it means to be “cap-exempt” – meaning an induvial is counted against the cap and there is no need to enter the H-1B lottery ever again.

When is an individual counted against the cap?

An individual is counted against the H-1B cap after they either (1) have been admitted into the United States in their H-1B status or (2) have been issued an H-1B visa stamp. In general, once admitted in H-1B status it is recommended that the individual work at least one day in their approved H-1B status before changing employers or returning to their home country so that an H-1B visa can be issued to them upon their return to the United States.

Once an individual is counted against the cap, they are permitted to remain in the United States in their H-1B status for up to 6 years. It is worth mentioned that the individual is not required to exhaust the allotted 6 years continuously.  

The following are some common applications of cap-exemption scenarios that should be taken into consideration when determining whether candidate needs to be registered in the H-1B lottery.

• Sam was selected in the H-1B lottery in 2019 and received an I-797B consulate approval notice. Sam subsequently obtained stamping in early 2020. He then entered the U.S. pursuant to his valid visa and employment with the petitioning employer. Sam is cap-exempt and will not need to enter the H-1B lottery process.
• Jane was selected in the H-1B lottery in 2019 as well and received an I-797B consulate approval notice. Jane subsequently obtained stamping but has not yet entered the United States. Jane is cap-exempt and will not need to enter the H-1B lottery again. However, in order for her to enter the U.S. Jane will need to make sure her underlying H-1B petition employment is still valid. If not, Jane can find a new employer to petition for her requesting “New Employment” in consular processing. Jane will not need to obtain a new visa and can enter the U.S. presenting her new H-1B approval notice.
• Danny was selected in the H-1B lottery in 2020. His H-1B petition was filed but was later denied after a Request for Evidence was issued by USCIS. Danny is NOT cap-exempt as he was not issued an approval notice and thus he will need to register for the H-1B lottery again.
• Samantha was selected in the H-1B lottery in 2020 and received an I-797B consulate approval notice. When she went for stamping she was issued a 221(g) for administrative processing and has yet to be issued an H-1B visa stamp. Samantha is NOT counted against cap and will need to register for the H-1B lottery again.
• Jack was selected in the H-1B lottery in 2018 and received an I-797A approval notice. He worked for his employer in the U.S. for 2 years and then returned to his home country. Jack is counted against the cap and can return to the U.S. pursuant to an approved cap-exempt H-1B petition. Upon his return to the U.S. Jack will be able to use his remaining 4 years of his H-1B eligibility.

Because the H-1B lottery is competitive and there are only a limited number of visas available, please discuss the potential candidate qualifications with an immigration attorney before proceeding with registering them in the H-1B lottery.

By: Jeanetly Garcia, Associate Attorney

Jeanetly Garcia advises employers and individuals through all phases of the non-immigrant visa process. As an attorney in the Nonimmigrant Visa Department at Reddy Neumann Brown PC she is experienced in filing nonimmigrant petitions and applications for immigrant benefits, as well as, responding to USCIS issued requests for evidence concerning an array of legal issues. Jeanetly joined the firm as a law clerk in 2018, and has since collaborated with attorneys from each of the firm’s departments on assignments ranging from drafting successful requests for evidence and appeals to filing H-1B and PERM cases.