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H-1B Cap Subject Petitions

By

Jennifer Behm

Posted

January 28, 2022

at

11:06 AM

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The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation.” In general, “specialty occupation” is defined as a position that requires at least a Bachelor’s degree or equivalent (12 years of industry experience). An applicant’s credentials must be somewhat related to the professional job to be performed in the U.S. It is not enough for an applicant to possess a Bachelor’s degree; the job itself must also require a degree, and USCIS must also determine that the professional position is one that requires a Bachelor’s degree. The attorneys at Berardi Immigration Law will analyze this based on U.S. Department of Labor (DOL) standards.

The H-1B Visa Lottery System

Each year, Congress limits the number of H-1B nonimmigrants admitted to the U.S. to 65,000 approved petitions for first-time applicants, with an additional 20,000 visas reserved for applicants with U.S. Master’s degrees. An applicant/employer can prepare for an H-1B filing early each year for submission to USCIS no earlier than April 1 each year. In March 2020, USCIS initiated an electronic registration program where applicants submit a registration providing basic information about the company and the applicant to the government between March 1- March 20. The government selects applicants from the pool of registrants by March 31. Should the application be selected, a completed H-1B petition will be submitted to USCIS within 90 days.

If the application is selected and approved, the H-1B would be valid for use beginning October 1 for up to three years with the possibility to renew up to a maximum of six years. Upon approval, the applicant may need to attend a visa appointment abroad (unless Canadian) before entering the United States.

Once an applicant has been counted against the H-1B cap and approved, he/she is not subject to the cap and may hold H-1B status for up to six years, with extensions beyond that possible under certain circumstances (normally in conjunction with a green card application).

Employer Obligations

There are numerous obligations of an H-1B employer that must be considered. The company must be a viable entity that can pay the applicant the prevailing wage for someone in a similar position in the location where the work is primarily performed. A certified Labor Condition Application (ETA Form 9035) is a prerequisite to H-1B approval. The LCA must be certified by the DOL before the petition is submitted to USCIS. The employer must also document compliance with the LCA requirements in a public access file (PAF), which our office will help prepare. The LCA and PAF contain standard attestations that the employer must make internally and to the public (incl. internal staff), which includes information on the basic wage information about the proposed H-1B employment, including rate of pay, period of employment, and work location.

An employer is also required to pay certain H-1B filing fees for submitting an application; under very limited circumstances, the premium processing fee may be paid by an employee so long as such payment does not offset against the beneficiary’s wages and/or benefits paid as stated on the Labor Condition Application. This is only applicable when the premium processing service is available for cap cases.

Government fees include:

  1. $460.00 Filing Fee
  2. $500.00 Fraud Detection and Prevention Fee
  3. $750 or $1,500.00 ACWIA fee (based on having less or more than 25 employees in the U.S., including those at any U.S. affiliates or subsidiaries)
  4. POSSIBLY: $455.00 I-539 fee for accompanying spouse or dependents under 21
  5. $2,500 Premium Processing Fee (optional and may or may not be available)

International Students and H-1B Status: Cap-Gap Extension

F1-to-H1B_650x350.webp Each year, some F-1 students seek to switch nonimmigrant classification from F-1 student status to H-1B temporary employment status after completing a program of study or post-completion optional practical training (OPT). Many F-1 students complete a program of study or post-completion OPT in mid-spring or early summer. Per federal regulations, after completing their program, F-1 students have only 60 days to take the steps necessary to maintain legal status or depart the United States. To avoid students falling into unauthorized status between the expiration of their F-1 and start of H-1B on October 1, the U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization, from April 1 to Sept. 30 for eligible F-1 students (the “cap-gap” extension).

Learn More About U.S. Immigration Pathways

Berardi Immigration Law is a full-service business immigration law firm that provides top-notch services to corporate clients and individual business professionals. Founded as a solo-practice in 2005 by Managing Partner Rosanna Berardi, the firm has grown exponentially over the years.

Connect with Jennifer to discuss your immigration options and gain more insight on living in the United States.

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