The H-1B is a visa category generally reserved for individuals in “specialty occupations,” and normally requires a bachelor’s degree at minimum. Positions in engineering, math, business and many technology fields fall under this “specialty occupation” umbrella. With 236,000 applications for only 85,000 visas in 2016, the importance of timing and processing procedures cannot be overstated. This article aims to explain the key issues involved in successfully navigating the H-1B petition process.

With few exceptions, availability in this visa category is limited, and this is known as the “H-1B cap.” For individuals with a U.S. bachelor’s degree, or foreign equivalent, the cap is set at 65,000. There are 20,000 additional H-1B numbers, technically exemptions, available for holders of U.S. master’s degrees. Together this gives a total of 85,000 “cap-subject” H-1B visas. There are some fortunate individuals that are beneficiaries of a second category known as “cap exempt” filings.  These individuals are sponsored by educational establishments, certain non-profits, and also include current H-1B employees who may be extending their status or transferring to another employer. If you are in any of these “cap exempt” categories, you should check with a business immigration attorney to confirm your eligibility.

To apply for the 2018 fiscal year H-1B cap, your top priority must be to have your employer file the petition within the acceptance timeframe.  The U.S. government’s fiscal year begins on October 1st each year. H-1B petitions can be filed up to six months prior to this date, typically April 1st.  If you intend to apply for the 2018 fiscal year H-1B cap, petitions will be accepted from April 3, 2017 to April 7, 2017.

It is recommended to start well in advance to ensure that all H-1B requirements are met as the process can be tedious and time consuming. Some important hurdles include filing the Labor Condition Application with the Department of Labor and putting together a strong petitioner letter outlining the job duties of the specialty occupation. You will also need to produce copies of degree certificates and transcripts, and your credentials must be certified by an evaluation service if your degree is from a non U.S. institution.

Once the “cap-subject” petitions are received by USCIS, a simple lottery is employed in choosing which applications to accept and which to reject. With this approach, the odds of being selected at random were approximately one in three for bachelor’s degree cap cases in fiscal year 2016.  Obviously as the number of petitions increase, these numbers will become more daunting. Each year the lottery takes place in April and receipt notices are sent to the attorney and employer of winning cases via regular postal mail. Applicants may then visit the USCIS website for information on when the petition will be fully processed. The receipt notice will also have a tracking number and one of two prefixes denoting the center that is responsible for the petition. WAC is the California Service Center and EAC is for the Vermont Service Center.  Denied petitions are typically returned to the attorney or employer by early to mid-July.

The 85,000 visa lottery winning cases under the H-1B cap are processed through one of the two designated centers mentioned above either through regular processing or premium processing. With regular processing, H-1B petitions are processed on a first come, first served basis. Again, as it is a lottery, the concept is largely redundant as tens of thousands of applications are all accepted at the same time. These regularly processed cases are typically completed in two to five months.  With premium processing, the employer pays an additional $1,225 for expedited handling, which can be requested with the initial H-1B petition. It is important to note that premium processing does not give any advantage in the lottery or at approval.  Beware of online forums, chat rooms or anecdotal ‘evidence’ of premium processing granting any favor above regular processing. Again, selection is purely by lottery chance. Premium processing does however guarantee that your petition will be reviewed within 15 calendar days of the date on the I-797 receipt notice which is sent to your attorney via email. This could result in the petition being accepted and approved before the end of May. Should the employer receive a “Request for Further Evidence,” the 15-day period is suspended when the request is made, and resumes when further evidence is received in response.

A convenient feature of premium processing is the ability to acquire this upgrade at any point while the H-1B case is processing. For many, the extra fee is worth the peace of mind that comes with an expedited outcome. In specific instances it is also the most sensible approach. For example, if an applicant already has an H-1B and is changing jobs, he or she should choose premium processing to avoid the possibility of quitting the present job, and having the H-1B for the new employer denied. Premium processing also makes sense if you are about to lose your current immigration status, or perhaps your Optional Practical Training is about to expire, and time is of the essence. It should also be noted that as an added benefit of premium processing, a dedicated phone number and email address have been established for each of the Service Centers which allows easier access to USCIS should any issues arise with the case.

To get the most accurate information on H-1B fiscal year 2018,  go to the USCIS website at the beginning of 2017 to sign up for email updates. Once you have filed and receive your H-1B receipt number, you can track the progress of your petition at Case Status Online. If you have any further questions or concerns, a consultation with a reputable business immigration attorney is highly recommended to assist in navigating this complex process.