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H-1B Cap: What Happens Now?

April 10, 2018

On Friday, April 6, USCIS announced that the annual cap on new H-1B visas had been met. For the sixth year in a row, USCIS received more than 85,000 H-1B petitions within the first five business days of April. The following are some common questions you may have while waiting for your lottery result.

Is there always a lottery after H-1B cap cases are filed? 

By regulation, USCIS must accept all petitions filed in the first five business days in April. If more than 85,000 petitions are filed during this window, USCIS must hold a lottery to randomly select which petitions will be adjudicated.

How does USCIS conduct the lottery?

First, USCIS will sort the petitions into US advanced degree (Master’s cap) and regular H-1B cap petitions. Next, it will assign an ID to each petition to conduct a computer-generated lottery. Then USCIS will randomly select 20,000 for the Master’s cap. Any unselected Master’s cap petitions will be added to the general pool. Finally, USCIS will select 65,000 petitions for the regular cap.

When can I learn my lottery result?

USCIS will begin sending out receipt notices for the selected petitions starting in mid-April, and extending over several weeks. USCIS will also return unselected petitions with return notices, typically starting in late May and extending over several weeks. As soon as EIG receives either a receipt notice or a return notice, we will contact you about your case.

I read that you can check the filing fee checks on my petition to know if I was selected. Is that true?

Cashed filing fee checks are not a reliable way to confirm whether your petition was selected. There can be delays and errors in posting the check images. The receipt or return notice is the only reliable way to confirm whether your case was selected.

My best friend is getting married in France this June. Can I attend the wedding?

It depends. Most H-1B cap petitions are filed requesting a change of status, to take effect on October 1 automatically. If you depart the US while your change of status request is pending, USCIS will consider you to have abandoned your request and will deny the change of status. Importantly, the H-1B can still be approved, but you will have to schedule a second international trip to apply for a visa and activate your H-1B status. If you hold another status with work authorization and can activate your H-1B later, you may be able to travel. Please contact your H-1B cap attorney to discuss the details of your trip.

If you are using Cap Gap for work authorization, you should not travel while your petition is pending. You will lose the remainder of your Cap Gap work authorization, and will not have work authorization again until October 1.

If your case was filed requesting consular processing, you may travel while the case is pending with no effect on the H-1B petition. You must, however, activate your H-1B through an international trip on or after October 1 to change status.

What if the wedding is in August?

If your H-1B petition has been selected and approved before your trip, you may travel without affecting your change of status to H-1B. However, you must have a valid visa stamp and appropriate documentation of your current status to return to the US before October 1. Please contact your H-1B cap attorney to discuss the details of your trip.

I’m using my OPT EAD card for work authorization right now. Do I need to apply for the STEM extension if I have an H-1B cap case pending?

Yes, you should still apply for STEM OPT. We cannot guarantee that your H-1B cap case will be selected this year, or that it will be approved if it is selected. You should apply for STEM OPT to ensure that you have continued work authorization in the US.