It’s not too early for employers that are subject to the H-1B cap to begin thinking about petitioning for H-1B status for a foreign professional worker.  The issue arises not only for a cap-subject employer that currently uses the talent of a foreign student in F-1 optional practical training (OPT), but also for a cap-subject employer that has identified a cap-subject non-student professional worker to hire.

If things go as they did last fiscal year, there will be a narrow window of time during which a cap-subject H-1B employer may petition for H-1B status.  “H-1B cap season” begins on April 1st of a fiscal year when the H-1B cap has been completely used.  April 1st is 6 months prior to October 1st, when the federal government fiscal year begins and new “H-1B numbers” are available.  At present, 65,000 H-1Bs may be granted under the cap for professionals holding at least a U.S. bachelor degree or equivalent; another 20,000 spots are available for those holding a master or higher degree.  Last fiscal year, USCIS reported that it received approximately 124,000 cap-subject H-1B petitions during the first week of April. 

As a means of managing the excessive demand for H-1B numbers, USCIS held a “lottery” to randomly select H-1B petitions for review.  Obviously, given that there weren’t enough numbers to cover all of the cap-subject H-1B petitions, many employers were turned away without an approval.

The demand this coming April is expected to be similarly high.  It’s not yet clear whether USCIS will conduct a lottery again or revert to a “first-in, first-out” process.  Either way, a cap-subject employer that is considering petitioning for H-1B status for a worker may want to make a decision soon regarding whether to proceed. 

Here are some things that the employer can do to make the analysis and preparation process go more smoothly:

  • Determine the proffered salary that will be offered to the H-1B worker or the range of wages where the salary will fall.
  • Define the position by developing an outline of the responsibilities, reporting relationships, whether full- or part-time, and job title.
  • Consider the credentials that are necessary for the job.
  • Establish a list of locations (place name and address) where the employee will be required to work.
  • Provide this information to your immigration attorney along with copies of the prospective H-1B beneficiary’s resume, degree certificates and transcripts, certifications and licenses (as applicable), and other documents that you believe are relevant.

Because the details of every case are different, the attorney may require more information and documents to fully assess the case, and will also need to see the prospective worker’s immigration documents, but this should get things off to a good start.

 In the meantime, Happy Holidays.  And, if USCIS should hold an H-1B lottery again in the coming April, may the odds be ever in your favor.


Catherine Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP. She may be reached at 412-391-1334 or at