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FY 2024 H-1B CAP Change of Status (COS) FAQ

November 16, 2022

Last Updated on February 26, 2023

 

 

 

 

Q1. What is the H-1B Program?

U.S. employers use the H-1B program to temporary employ foreign workers in specialty occupations, such as scientists, engineers, or software developers that require theoretical or technical expertise in specialized fields. 

Q2. What are the eligibility criteria for H-1B visas?

The job must meet at least one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

For an individual to qualify for a specialty occupation he/she must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree (or foreign equivalent) required by the specific specialty occupation from an accredited college or university;
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Q3. How many H-1Bs are allotted annually?

The current annual cap on the H-1B category is 65,000. There are an additional 20,000 H-1Bs allotted for applicants who hold a master’s degree or higher from a U.S. college or university. There are a total of 85,000 H-1B visas available each fiscal year.

Q4. What is the difference between filing an H-1B Cap case as a Change of Status or via Consular Processing?

There are two ways your H-1B CAP petition can be filed: (1) Change of Status; or, (2) Consular Processing.

  • Change of Status: if if you are already in the U.S. in another valid nonimmigrant status (such as F-1, L-1 or TN) and will not be travelling internationally in 2022, we recommend filing your case as a “Change of Status,” so that your status (and the status of any dependents applying with you) will change to H-1B automatically on October 1, 2022 or the approval date, if approved after October 1, 2022.
  • Consular Processing: we recommend filing your case with “Consular Processing” if any of the following scenarios applies to you:
    • You are currently outside the U.S. and do not have another type of U.S. immigration status available to you.
    • You are currently in the U.S. in another status, but you have international travel plans before October 1, 2023. Consular processing allows you the flexibility to travel while the H-1B petition is pending.
    • You are in the U.S. in another status and do not wish to activate your H-1B in October for any other reason (i.e. your spouse is working on EAD based on your current status).

If your H-1B Cap case is filed with Consular Processing, your H-1B status will not go into effect automatically. You (and all dependents) will need to travel internationally, obtain an H-1B visa stamp from a U.S. consulate abroad, and re-enter in H-1B status. We recommend obtaining your H-1B visa stamp at a U.S. consulate in your home country. If you are a Canadian citizen, you do not need a visa stamp, but you will need to travel and re-enter the U.S. with your H-1B approval notice.

Q5. When will the lottery be conducted?

Last year, USCIS implemented an H-1B electronic registration system for the cap lottery. Similar to last year, we anticipate employers will have the opportunity to register its employee applicants from March 1 through March 21, 2023. 

USCIS will then send an electronic notification of selection, at which time, employers are given a certain period to file the H-1B petition for its employee. USCIS has not announced specific dates on either the notification of selection dates or filing deadlines for this fiscal year.

Q6. When is the earliest my employer can file my new H-1B petition?

The government has implemented a new registration process. Once we receive notification of selection, we will have 90 days to submit the petition with USCIS.

Q7. How long will the USCIS take to process my petition?

USCIS receives thousands of H-1B CAP applications during the 90-day filing window. As such, it takes longer than usual to process the applications. 

Last year, USCIS announced they would not start issuing receipt notices until at least May 1st. Typically, cases filed via premium processing are receipted via electronic receipt within 6 weeks and processed within 15 calendar days thereafter. Cases filed via normal processing can take 2-3+ months to receive the physical, mailed receipt notice and 4-6+ months for adjudication. Note that this estimate does not account for time needed to process any Request for Evidence (RFE) notices that may be issued or the possibility of USCIS temporarily suspending the premium processing benefit.

Q8. When will my H-1B status take effect?

If your case is filed as a "Change of Status" petition, your status will automatically change from your current visa status to H-1B on October 1, 2023; or the approval date, if approved after October 1, 2023. Petitions filed with Consular Processing will require obtaining the visa abroad first and re-entering the U.S. in H-1B status.

Q9. What is the maximum period of stay for an H-1B?

As an H-1B nonimmigrant, your initial petition can be granted for three years at most. Your time period can be extended, up to a total of six years, with some exceptions.

Q10. Are my family members included in my H-1B petition?

Your spouse and unmarried children under 21 years of age are eligible for H-4 status. If your family members are in the U.S., CIP will prepare an H-4 change of status for them and file it concurrently with your H-1B petition. Please note if they are filing for H-4 change of status, they should not travel until the H-4 has been approved.

Q11. Can I travel while my H-1B petition is pending?

No. If you travel internationally while the H-1B Change of Status is pending, USCIS may consider the change of status petition to have been abandoned. While the underlying H-1B petition may still be approved, you will be required to travel internationally and obtain an H-1B visa stamp and re-enter the U.S. to activate your H-1B status. If you have international travel plans in 2023, please notify us immediately as your case will need to be filed under consular processing.

Q12. Can I travel between the time my H-1B is approved and October 1, 2023?

Travel prior to October 1, 2022 is not recommended. Please contact our office in advance of any international travel so that we may review your situation and advise you of any applicable risks.

Q13. When do I need to obtain an H-1B visa stamp?

For any international travel after October 1, 2023, you will need to apply for the H-1B visa stamp at a U.S. consular post abroad prior to returning the U.S. Please note if you are a Canadian Citizen, you are exempt from the visa requirement.

Q14. Do my tax deductions change if I am switching from F-1/J-1 to H-1B?

Yes. If you are currently in F-1 or J-1 status and your H-1B CAP petition is approved, please notify your employer’s payroll department once you enter the U.S. in H-1B status. This is required to ensure that you are complying with tax regulations and that the appropriate deductions are being made to your paycheck.

Q15. How can I submit evidence of my educational background if I have not yet received the diploma for my degree program?

You must submit evidence of the educational degree at the time of filing. If all requirements for the degree have been met by the time of filing (April 1 – June 30), but the degree has not yet been awarded, the following alternate evidence may be submitted:

  • A copy of your final official transcript; or
  • A letter from the Registrar’s office confirming that all degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded.)

Q16. F-1 Students: What is a STEM OPT extension and who is eligible?

STEM OPT extensions are separate and distinct from H-1B applications. F-1 students are eligible for a 24- month extension of post-completion OPT if:

  • The student possesses a bachelor’s, master’s, or doctorate degree from a qualifying U.S. institution included on the STEM Designated Degree Program List;
  • The student is currently in an approved post-completion OPT period based on a designated STEM degree; The student is employed by a U.S. company enrolled in E-Verify;
  • The student is employed by a U.S. company enrolled in E-Verify;
  • The student timely files for an extension (i.e., before current post-completion OPT expires); and
  • The student’s optional practical training program with the employer is related to their STEM program of study.

F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q17. What is the application process for the STEM extension?

To determine whether you are eligible and for guidance on how to apply, please contact your Designated School Official (DSO).

Q18. What is "Cap-Gap"?

F-1 students (including those in OPT or STEM OPT extension) who file an H-1B petition prior to their "final" EAD expiration date are eligible to continue working under "Cap-Gap" regulations. This regulatory provision allows these students the benefit of extending their visa status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the U.S. during the "gap". Please refer to the following website for further information on "Cap-Gap" here:

https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-of-post-completion-optional-practical-training-opt-and-f-1-status-for-eligible-students

Q19. I heard there may be changes to the way H-1B Cap is processed. What are those changes and how will it affect me?

USCIS has announced a final rule that will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.

This effort will only affect H-1B registrations (or petitions, if the registration process is suspended) submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It will be implemented for both the H-1B regular selection and the H-1B advanced degree exemption.

We will notify you of any changes that may impact your petition.

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