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Increasingly, U.S. businesses are relying on foreign nationals to perform jobs that require specialized skills, particularly in the fields of medicine, engineering, and IT. Of the visa options available to employers to sponsor these prospective employees the H-1B is often the only one available.  Too often the visa is not available because of arbitrary statutory caps placed on the number of these visas made available annually by the federal government.

What do you need to know about the cap?

First, the annual allotment of visas is 65,000, plus an additional 20,000 for prospective employees who obtained their Master’s Degree from a U.S. university. Of this 65,000 pool, 6,800 of the visas are set aside for residents of Singapore and Chile.

Second, the annual allotment begins to be distributed on October 1. Applications, however, begin April 1. Applications received sooner are rejected, so timing is important.

Third, in recent non-recession years applications for H-1B visas have exceeded the annual allotment within the first week (i.e. by April 7). When this happens the Department of Homeland Security (DHS) utilizes a lottery system to randomly select applications to be reviewed.  The chances of being selected in the lottery vary from year to year, based on the number of applications, but commonly the odds are 1:2 to 1:4 of being selected. Nothing you do can improve your odds. If sufficient applications have been received in that first week of April no further applications will be accepted and you will have to wait until the following April to apply. 

Finally, the cap only applies for new H-1B visa applications. If you are looking to hire someone who has already been granted an H-1B visa (in the past 6-years) you can apply at any time.     

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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