FY 2024 H-1B CAP Consular 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 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 you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
  • Hold a foreign degree that is equivalent to a U.S. bachelor’s or higher degree in the specialty occupation; or
  • 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. As such, there are a total of 85,000 possible H-1B visas awarded each fiscal year.

Q4. 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.

Q5. 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 you are already in the U.S. in another valid immigration status (such as F-1, L-1 or TN) and will not be travelling internationally in 2023, we recommend filing your case as a “Change of Status,” so that your status (and the status of any family members applying with you) will change to H-1B automatically on October 11, 2023.
  • 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. 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.

If your H-1B Cap case is filed with Consular Processing, your H-1B status will not go into effect automatically. You will be required 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.

Q6. How long will the USCIS take to process my petition?

USCIS receives hundreds of thousands of H-1B cap applications during the first week of April each year. As such, it takes longer than usual to process the applications. If your case is accepted for processing, processing times will depend on whether it is filed with or without premium processing. 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 or more 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 (as was the case the last two years). If your case is not accepted for processing, your case will be returned to Corporate Immigration Partners (CIP) usually within 4-6 months of filing.*

*Due to the government’s recent announcement of a new electronic registration process, these processing timelines may change.

Q7. When will my H-1B status take effect?

We will be filing your case as a consular petition. Once your case is adjudicated by USCIS, your approval notice will be sent to our office and we will then send it to you. You will then need to make an appointment at a U.S. consulate/embassy in your home country to obtain an H-1B visa stamp/seal. Please note if you are a Canadian Citizen, you will not need to obtain a visa to enter the U.S. although you will still need to be examined by CBP and enter in H-1B status. Your H-1B status will not take effect until you have properly entered the U.S. in H-1B status. Please note that the earliest you may enter the U.S. will be October 1, 2023 (ten days prior to October 11, 2023).

Q8. 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.

Q9. 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. However, since you are filing via consular processing, you do not need to file an application with USCIS for your dependents. They can apply for their H-4 visas directly with the U.S. consulate/embassy when you apply for your H-1B visa. Each consulate/embassy has different procedures and timelines for visa applications. Before finalizing any travel plans, please check the U.S. Department of State website at http://www.usembassy.gov for procedures at the specific consulate and to confirm whether family appointments are available. Please remember to notify CIP of any international travel plans.

Q10. CIP’s online questionnaire asks for the “U.S. Embassy or Consulate at which you will apply for a visa.” How am I supposed to answer this?

The H-1B forms require CIP to list a specific consulate where you will apply for a visa, although in practice, you are not obligated to go to this consulate. If you live abroad, we suggest you list the consulate in your country that is most convenient for you. If you are currently in the United States, we suggest you list the consulate where you have applied for your previous visa(s).

Canadian citizens should list their preferred international airport with a Pre-Flight Inspection Station or their preferred border crossing port of entry. If you are not sure what to list here, please put your best guess, and we will double-check with you if we have any questions.

Q11. When applying for an H-1B visa, do I have to go to the consulate in my home country? Could I go to a different consulate?

Generally, we recommend applying for an H-1B visa at the consulate in your country of citizenship or country of current residence. We do not recommend trying to apply at the consulate of a country where you are not a citizen or a resident. The government wants to discourage “consulate shopping,” the practice of choosing a consulate that you believe will be more “easy” or “favorable” to you. The consulate has the right to turn you away if they do not wish to adjudicate your visa application. Furthermore, if your case is selected for administrative processing, you may be required to remain in the country for the length of the processing. If there is no U.S. Consulate in your home country or if traveling there would pose a hardship, please contact your CIP legal team and we will advise you as to where you can apply.

Q12. What information will I need to get my H-1B visa stamped at a U.S. Consulate abroad?

Your global legal team will provide detailed visa application instructions with the H-1B approval. In addition, you must review the website of the U.S. Consulate in your home country regarding the specific documentation they require.

Q13. Can I travel while my H-1B petition is pending?

You may travel internationally while your petition is pending. However, please notify our office if you have plans to travel to the U.S. so that we may advise you.

Q14. Can I travel after my H-1B is approved?

You may travel internationally after your petition is approved. Please note that the earliest you may enter the U.S. in H-1B status will be October 1, 2023 (ten days prior to October 11, 2023). Please contact our office if you have plans to travel to the U.S. before October 1, 2023.

Q15. 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.

Q16. 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 April 1st, 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 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).

Q17. 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 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.

Q18. 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).

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 that it will be implementing the H-1B electronic registration process for this year's Cap. 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.

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