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.
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 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.