The H-1B nonimmigrant classification is one of the most common ways for a foreign national to come to the United States to work on a temporary basis. There is a limit on the number of available H-1B visas that can be issued in each fiscal year. This numerical limitation is known as the H-1B cap and is set at 85,000 per fiscal year. In recent years, the number of persons applying for the H-1B cap has greatly exceeded the number of available H-1B visas. For example, more than 200,000 petitions were submitted in this year’s H-1B cap lottery.

Once someone is counted against the H-1B cap, they are permitted to remain in the U.S. in H-1B status for a total of 6 years. And so the question is, “What must occur so a person is counted against the H-1B cap?“

You are counted against the H-1B cap after you have been issued an H-1B visa stamp or spent at least one day in H-1B status. You are not required to use your 6 years of H-1B eligibility within a defined timeframe. The following examples demonstrate the application of the rule. 

• Jill went through the H-1B cap lottery and received an H-1B approval in 2010. Jill was on H-1B for 6 months and then she left the U.S. Jill has been counted against the H-1B cap and is eligible to spend another 5.5 years in the U.S. in H-1B status. Jill is not required to use her 6 years of H-1B eligibility immediately. Jill could decide return to the U.S. on H-1B in 2020, 2025, 2030, etc. She would not be required to go through the H-1B lottery because she was already counted against the H-1B cap and she can use the remaining 5.5 years of her H-1B eligibility. 

• Inc. filed an H-1B petition on behalf of its employee Jack. Jack was living outside the United States when ABC Inc. filed his H-1B petition. USCIS approved the H-1B petition; Jack subsequently attended an H-1B visa interview at a U.S. consulate and received an H-1B visa stamp. Jack has been counted against the H-1B cap. Jack ultimately decided to stay in his home country and never spent a single day in H-1B status. Years later, XYZ Corp. wants to hire Jack as an H-1B employee. Jack would not be required to go through the H-1B lottery because he was already counted against the H-1B cap. He still has 6 years of H-1B eligibility because he never spent a day on H-1B.