It is H-1b season again. On April 1st every year, companies from all over the United States submit hundreds of thousands of applications for their foreign employees for the available 85,000 H-1b visas. The United States Citizenship and Immigration Service will accept applications for only the first five business days of April. USCIS used to only accept applications on the first day but the incoming crush of applications was overwhelming.

Out of the hundreds of thousands of applications, USCIS will only select a predetermined amount of applications to process. This is called the H-1b Visa Lottery. Non-processed applicants will find out that their case was not selected in June when they received their carefully documented and prepared application returned to them. They will receive the processing fees returned to them but they will lose the attorney fee and time that was spent preparing the application.

The 85,000 H-1b visas are separated into three categories. The regular cap are for applicants with a minimum of a Bachelor’s Degree or equivalent level of experience. The number of visas available for this category is 58,200 plus any unused visas from the previous year. There is the Chile-Singapore Cap which is set aside for nationals from Chile and Singapore and taken from the regular cap. The available visas for this category is 6,800.

The Advance Degree Cap are for applicants which have a graduate degree or higher from a qualified U.S. University. Applicants with an Associate’s Degree or a Bachelor’s degree from the United States do not quality. Applicants with a Masters or a Doctorate from a foreign university also do not qualify for the Advance Degree Cap. The annual cap for this category is 20,000. When the Advance Degree Cap is reached, the remaining accepted petitions are sent to the Regular Cap.

Certain H-1bs are Cap-Exempt. The most common cap exempt applications are for current H-1b visa holders. Current H-1b visa holders can generally stay in their status for a total of 6 years. They can extend their status if they have not reached their 6 year limit. The H-1b holder can change employers or even work for a second company at the same time under their H-1b. Certain non-profits, hospitals, and universities are exempted from the H1b cap.

Accepted and approved H-1b Visa applicants can begin working on October 1, 2015. A H-1b visa cap-gap will bridge eligible F-1 students in school or on OPT until the start of H-1b season. This will allow them to stay in the United States. Those who are not eligible for the cap gap may have to leave the United States and wait for the processing to complete in their home country.

About Robert Virasin

Robert R. Virasin serves as manager of Siam Legal International’s Visa Division. He has a law degree from the University of Houston and Chulalongkorn University. Mr. Virasin is a member of the State Bar of Texas and is licensed to practice U.S. immigration law in the United States and worldwide. Mr. Virasin has worked for several law firms as an attorney or legal manager for over 15 years. The last decade he has focused his area of practice to non-immigrant and immigrant issues. Mr. Virasin has authored over fifty articles on various legal subjects.

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