The H-1b Visa CAP: The Basics and FAQs (Frequently Asked questions)

The Basics

65,000 H-1b visas are awarded each year, with an additional 20,000 awarded to individuals who received a Master’s degree or higher from a U.S. university. This limit on H-1b visas is called the “H-1b Cap”. To qualify for a H-1b, you must have the equivalent of at least a U.S. Bachelor’s degree and a job offer from a U.S. company. The job offered must require the particular degree held by the H-1b applicant. H-1bs are valid for 6 years, awarded in two 3-year terms. They can be extended beyond 6 years if the person timely begins the greencard process.

FAQs

Q: When should the lottery registrations and then the application be submitted?

A: The H-1b lottery is conducted in March, more than six months before a person can begin working in H-1b status, which is October 1. A company should prepare their H-1b lottery registrations with counsel in February.

If a H-1b registration is selected in the lottery, the company then has 90 days to submit the full H-1b petition.

Q: If I receive a H-1b, when can I start to work?

A: If you are allotted a H-1b visa and your application is approved, you cannot begin working until October 1. There is an exception for individuals who currently are in OPT status. If their OPT expires between April 1 and September 30 (the period between the H-1b application period and start date), your OPT work permission can be extended until October 1, at which time you can begin working in H-1b status. This special rule is called “CAP GAP”, and enables certain F-1/OPT students to avoid interruptions in their employment.

Q: What are the chances of receiving a H-1b, or “winning the H-1b lottery”?

A: This is the million dollar question. Your chances of receiving a H-1b are a function of demand. Since 2014, demand has outstripped supply during the first week of the application period. In 2023, there were over 700,000 applications for the 85,000 H-1bs. However, many of these registrants were “double applicants”, meaning they had multiple companies or entities submit registrations for them in order to increase their chances of winning the lottery.

USCIS changed their rules in 2024 to limit each foreign national with only one chance to win the lottery (the lottery is conducted based on foreign nationals now, rather than based on the number of different registrations submitted by companies). Here is more about the new “Beneficiary Centric” H-1b system.

Q: What is the cost to register in the H-1b Lottery?

A: The H-1b registration fee is going up to ($215 in 2025 – for the March 2025 H-1b lottery for the allocation of the 2026 H-1b numbers). This fee was $10, so this is large increase. Law firms also charge legal fees to register employees for the H-1b lottery. You can call us at (303)872-6985 or email us here to inquiry further.

Q: If I do not want to risk the H-1b lottery, do I have other options?

There are a number of other nonimmigrant work visas available, but they each have their own distinct requirements. Some of the more common alternatives are below. As you can see, they have quite specific requirements, which means many people are stuck playing the H-1b lottery each year. However, for a motivated individual and/or employer, it is wise to put an immigration plan in place so that an alternative path exists in the future. For example, establishing a subsidiary in a foreign country so that you can move foreign nationals from that country to the U.S. office on a L-1 visa. The most common alternatives to H-1b visas are below.

• O-1 visa: Requires extraordinary ability in the arts, sciences, athletics, business or other fields.
• L-1 visas: Allows managers, executives and specialized knowledge employees at related companies abroad to transfer to the U.S. office.
• E-2 visas: Grants work visas to substantial investors or traders. However, these visas are only available for foreign nationals from certain countries. Click here for a list of these countries.
• TN visas: Grants work visas to Mexicans and Canadians who work in particular professions (TN and E-3 visas are the closest “relatives” of H-1b visas in terms of straightforward eligibility requirements).
• E-3 visas: Basically “H-1b” visas just for Australians. They are capped, but the cap is never reached so available year round.
• H1-B1: H-1b visas for Chileans and Singapore nationals. Like E-3s, they are capped, but the cap is rarely reached.

Q: Are all H-1b positions counted against the H-1b Cap?

A: No, some employers are allowed to sponsor foreign nationals for H-1b visas at any time of the year, regardless of whether the Cap has been reached. These types of employers are called “Cap exempt.” They are a relatively small group, including the following types of companies and organizations:

• Institutions of Higher Education (as defined by 20 USC 1001(a))
• Non-profit entities that are related to or affiliated with an institution of higher education
  • An affiliated or related non-profit is an entity that must be connected or associated with an institution of higher education through (see 8 CFR 214.2(h)(19)(iii)(B)):
    • Shared ownership or control by the same board or federation
    • Operated by the institution of higher education
    • Attached to an institution of higher education as a member, branch, cooperative, or subsidiary
• Non-profit research organizations – one primarily engaged in basic research or applied research.
• Government research organizations

Q: What if I have more questions?

A: Give us a call at (303) 872-6985 and you will be able to speak to a lawyer on the phone, no charge.