On H1B Visa Quotas, Cap, Processing Times, and OPT Cap Gap

A lot of inquiries come our way regarding the dates involved in H-1B petitions, particularly a couple of OPT folks whose employers are petitioning them for an H-1B. Confusions about the filing date, their status upon “approval”, and when the H-1B kicks in are often topics of inquiry. So here are some dates and timeframes. I’ll explain each below.

  • April 1.
  • 3-4 months.
  • Premium Processing.
  • Cap Gap.
  • October 1.

There is a quota every year for H-1B issuances, unless the employer is exempt from this quota, which is another topic in and of itself.

65,000 is the quota, with an extra 20,000 for those with advanced degrees.

April 1 of each year is the first date that an H-1B could be filed (could be sent the day before, as long as it gets to CIS on April 1). From there the quota gets filled. Some 5 or 6 years ago, the quota was filled in a day. In 2009 though, it wasn’t filled until 2010. So it depends on the economy and hiring needs of companies.

The H-1B processing time is about 3 to 4 months regular processing (you can do premium processing and the H-1B will be adjudicated in about a week, barring RFEs). So if an H-1B petition is filed in April 1, approval on average should be July or August.

The confusion starts there.

Other non-immigrant visa change of status applications, including B1/B2 tourist or F-1 student status for example, upon approval, you will be in that particular status. Not for H-1B initial filings (unless there’s an exemption). That’s what confuses people.

For H-1Bs, in initial filing cases, especially for those who are in OPT whose H-1B petitions were filed in April 1 or early in the quota opening, H-1B status kicks in on October 1 even though the H-1B petition was approved earlier. In fact, on the H-1B petition approval (which goes to the employer and / or the employer’s attorney), October 1 would be the start date the H-1B status kicks in even though the “approval date” is earlier.

So what if the OPT expires before October 1?

That’s where the cap gap rule comes in.

The cap gap allows OPTers to remain employed, remain in status, and be permitted to continue getting paid on their OPT jobs. So let’s say you’ve been working for Company A on OPT and Company A petitions you in April 1. Your OPT expires June15. From June 16 to October 1, because of the cap gap (assuming your employer still wants to employ you), you can stay in the US and work for Company A until September 30. Your status will still be under F1.

Then in October 1, your H-1B status kicks in.

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