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H-1Bs – Caps, Gaps, and Status

By Kailey Blazek Naranjo
March 10, 2023
  • H-1B
  • Immigration
  • Immigration Services
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This is part of the ongoing H-1B Frequently Asked Questions series, other posts are linked below. Please contact your Dentons Immigration attorney for additional information and the next steps on the H-1B application process and lottery.

FAQs –

Eligibility and Registration

Selection

Q: When can I start working in H-1B status?

A: Registrants in the fiscal year (FY) 2024 lottery cannot begin employment until October 1, 2023.

Q: My F-1 student status expires this summer. Will I have a gap in work authorization if I’m selected in the lottery?

A: If your F-1 status (including OPT/STEM OPT) expires between April and September 2023, and you are selected in the H-1B lottery, you may qualify for the “cap gap.” This refers to the government’s automatic and temporary extension of your F-1 status until September 30, 2023, to “bridge the gap” between the expiration of your F-1 status and your first date of H-1B eligible employment on October 1. If this applies to you and you want to remain work authorized without interruption, you may have international travel restrictions.

Q: Are there any exceptions to the H-1B lottery and process?

A: Yes, there are exceptions to the H-1B cap. The primary exception is higher education institutions, non-profit organizations affiliated with a higher education institution, and nonprofit research or government organizations are all “cap-exempt” and may file H-1B petitions at any time. Most other employers and applicants are limited by the H-1B annual quota.

H-1B Background

H-1B status is reserved for professionals with a bachelors or higher degree or foreign equivalent performing a job that requires a degree in a specific field (a “specialty occupation”).

Many years ago, Congress chose 65,000 as the number of new H-1Bs to award each fiscal year. Later, an additional 20,000 H-1Bs were allocated to people who earned U.S. master’s or higher degrees. This combined total of 85,000 is known as the H-1B “cap.”  Exceptions exist, but most private-sector employers are subject to it.

Because many more applications for H-1Bs are made each year than the number available, the process turned into a lottery. In 2020, the U.S. Citizenship & Immigration Service (USCIS) installed a new registration system, scrapping the old application process that required employers and immigration practitioners to pre-prepare and mail in all H-1B lottery petitions in the first five business days of April.

Now employers and their legal counsel submit H-1B applicants via an online registration system, which is far less burdensome than the prior application process. This year, registration is open March 1 – March 17. USCIS has announced they intend to notify selected registrants by March 31. H-1B petitions for selected registrants can be filed beginning April 1 and up to 90 days thereafter.

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Dentons Davis Brown, H-1B Background, h-1b exceptions, H-1B lottery, H1B, Immigration
Kailey Blazek Naranjo

About Kailey Blazek Naranjo

Kailey is an immigration lawyer and collaborator. She focuses on providing clients with the information they need at the time they need it, whether it’s answering an urgent call to address an immediate concern or brainstorming long-term visa or business solutions. Regardless of her clients’ situations, Kailey seeks to minimize the burden of immigration law and its ever-changing procedures.

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