by Chris Musillo

The H-1B cap filing date will be here before you know it. New H-1Bs are subject to the H-1B cap and must be filed on April 2-6, 2018, for a start date of October 1, 2018. The USCIS treats all H-1Bs that are filed April 2-6 as if they were filed on the first day of H-1B season.

The H-1B cap will surely be oversubscribed next year. When the H-1B cap is oversubscribed, the USCIS holds an H-1B lottery, which is what they did this past April. In April 2017, 42% of H-1Bs that were filed on April 1 “won” the H-1B lottery and 58% lost the H-1B lottery.

This year we are expecting that fewer H-1Bs will be filed than in 2017. It would not surprise us if the H-1B lottery winners exceed the number of H-1B lottery losers.

A variety of types of case are subject to H-1B cap:

  • International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
  • International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
  • Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
  • Prospective international employees currently living abroad.

These types of case are not subject to H-1B cap:

  • H-1B amendments/extensions/transfers
  • H-1B in the past where employee has used 6 years
  • Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
  • Institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

Please contact us if you have any questions or are looking for representation in filing H-1B cap petitions.


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