When is a person considered as counted against the H-1B cap?

            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 six years. And so the question is, “What must occur so a person is counted against the H-1B cap?"

            Some say a person is counted against the H-1B cap as soon as the H-1B cap-subject petition is approved, while others reason more is required. In addition to receiving an approval of a H-1B cap-subject petition, some attorneys believe that a person is only considered as counted against the H-1B cap after they have been issued an H-1B visa stamp or spent at least one day in H-1B status. For now, there is no clear answer as USCIS is not consistent on the issue. 

By: Zachary Taylor

Zachary Taylor advises employers and individuals on all aspects of U.S. immigration law, with a particular focus on nonimmigrant visas. His practice includes filing petitions and applications for immigration benefits, responding to requests for evidence issued by government agencies, and drafting motions and appeals.