Adhikari Law PLLC, Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) will start accepting H-1B electronic regisrations for the H-1B lottery (a computer generated random selection) beginning from noon Eastern on March 7th and will continue till noon of March 24, 2025 for the fiscal year 2026. During this period, prospective H-1B employers as the petitioners and the legal representatives must use a USCIS' online account to register each beneficiary electronically for the selection process and pay the associated H-1B electronic registration fee of $215.
Already existing USCIS' organizational account of the employer and the legal representative's account can be re-used for this year's H-1B registration too. First-time registrants can create an account at any time or the legal representative can help you create one. You can find additional information and resources on the organizational accounts, including a link to step-by-step videos, on the Organizational Accounts Frequently Asked Questions page.
Lottery selections process
Lottery selections will take place after the initial registration period closes, so there is no requirement to register on the day the initial registration period opens.
The FY 2026 H-1B cap will use the beneficiary-centric selection process launched in FY 2025. Under the beneficiary-centric process, registrations are selected by unique beneficiary rather than by registration. If USCIS receives registrations for enough unique beneficiaries by March 24, USCIS will randomly select unique beneficiaries and send selection notifications via users’ USCIS online accounts. If USCIS does not receive registrations for enough unique beneficiaries, all registrations for unique beneficiaries that were properly submitted in the initial registration period will be selected. USCIS generally notifies by March 31 prospective petitioners and representatives whose accounts have at least one registration selected.
An H-1B cap-subject petition, including a petition for a beneficiary who is eligible for the advanced degree exemption, may only be filed by a petitioner whose registration for the beneficiary named in the H-1B petition was selected in the H-1B registration process. Additional information on the electronic registration process is available on the H-1B Electronic Registration Process page.
Registrants’ or their legal representative online accounts will show one of the following statuses for each registration (that is, for each beneficiary registered):
- Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible for selection in any subsequent selections for the fiscal year for which it was submitted.
- Selected: Selected to file an H-1B cap petition.
- Not Selected: Not eligible to file an H-1B cap petition based on this registration.
- Denied – duplicate registration: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
- Invalidated – failed payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.
- Deleted: The submitted registration has been deleted and is no longer eligible for selection.
- Processing submission: USCIS is processing your submission. It may take up to 72 hours for all of your case information to show on the case details page. While it is processing, you will be unable to access your draft.
Some substantial changes in H-1B policy recently
USCIS made a substantial changes in its H-1B policy with its final rule governing H-1B program with the following changes:
- Beneficiary owning H-1B Petitioner/Employer: DHS is codifying a petitioner’s ability to qualify as a U.S. employer even when the beneficiary possesses a controlling interest (more than 50%) in that petitioner. (a big deal!).
- Specialty Occupation Definition and Criteria: DHS codifies and clarifies the specialty occupation standard, including by:
- Clarifying that “normally” does not mean “always” within the criteria for a specialty occupation.
- Codifying the “directly related” requirement in the definition and criteria, and clarifying this as meaning “a logical connection”.
- Codifying current practice that a generalized degree is not sufficient.
- Codifying current practice that a position may allow for a range of qualifying degree fields.
- Now the specialty occupation is defined as the following: Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. A position is not a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position. A position may allow for a range of qualifying degree fields, provided that each of those fields is directly related to the duties of the position. Directly related means there is a logical connection between the required degree, or its equivalent, and the duties of the position.
- Deference to prior decision: Codifies exisiting policy to give deference to previously approved H-1B petition unless some material issues in previous petition.
- H-1B Cap Exemptions: DHS is revising the requirements:
- to qualify H-1B Cap exemption when a beneficiary is not directly employed by a qualifying institution, organization, or entity.
- DHS is revising the definition of “nonprofit research organization”, “governmental research organization” and “non-profit or tax exempt organization. DHS is replacing “primarily engaged” and “primary mission” with “a fundamental activity in basic research and/or applied research,” in order to permit a nonprofit entity or governmental organization that conducts research as a fundamental activity but is not primarily engaged in research to meet the definition of a nonprofit research entity or a governmental research organization.
- H-1B Amedment: Codies into the rule that an H-1B Amendment Petition will be necessary when the worksite change is outside the normal commuting distance from previously approved petition as this worksite change is treated as a material change and any material change requires an H-1B Amendment petition.
- Evidence of Maintenance of Status: DHS clarifies that the evidence of maintenance of status is required (e.g. pay stubs, W-2, tax returns, evidene of work products, etc.) for petitions where there is a request to extend or amend the beneficiary’s stay.
- Eliminating the Itinerary Requirement: DHS eliminates the H programs’ itinerary requirement.
- Validity Expires Before Adjudication: DHS allows H-1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end date, or the period for which eligibility has been established, has passed. This typically will happen if USCIS deems the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.
- Automatic Extension of Authorized Employment “Cap-Gap”: DHS is revising the automatic cap-gap extension end date from October 1 to April 1 of the fiscal year for which H-1B status is being requested for F-1 holders in H-1B Cap-Gap period. This will give DHS more flexibility to adjudicate the petition later or employee to continue to have their OPT/STEM EAD work authorization get automatically extended till then.
- Bona Fide Job Offer for a Specialty Occupation Position: DHS is codifying USCIS’ authority to request contracts, work orders, or similar evidence “showing the bona fide nature of the beneficiary’s position,” rather than “showing the terms and conditions of the beneficiary’s work” as stated in the Notice of Proposed Rulemaking (NPRM).
- Site Visits: DHS is modifying the H-1B regulations to codify its existing authority to conduct site visits and clarify the scope of inspections and the consequences of a petitioner’s or third party’s refusal or failure to fully cooperate with these inspections.
- Third-party placement (Codifying Defensor case’s precedent): In this provision, when the beneficiary will be staffed to a third party, USCIS will look at the third party’s requirements for the beneficiary’s position, rather than the petitioner’s stated requirements, in assessing whether the proffered position qualifies as a specialty occupation.
These reformed policies became effective from January 17, 2025. Over the years, the attorneys at Adhikari Law PLLC have been arguing in its H-1B filings for its clients that the above provisions are “inherent” in the Immigration and Nationality Act (INA) governming H-1B work visa program; and USCIS should give deference to the intended purpose of the law and that the regulations and Congressional Act should be interpreted coherently instead of imposing criteria which are not found in the immigration laws. It was high time that the government adopted these “common sense” policy and improved its adjuducatory practices without a change the immigration statute. These were what we were advocating for our clients before!
FY 2026 H-1B Cap Petitions May Be Filed Starting April 1 for up to 90 days
H-1B cap-subject petitions for FY 2026, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2025, if filed for a selected beneficiary and based on a valid registration. The filing window will remain open for up to 90 days. We recommend filing well in advance to avoid last minute glitch with USCIS' online system.
Only petitioners with registrations for selected beneficiaries may file H-1B cap-subject petitions for FY 2026.
An H-1B cap-subject petition must be properly filed at the correct filing location (see H-1B Form I-129 Filing Location Change to Lockbox section below) or online at my.uscis.gov and within the filing period indicated on the relevant selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days. Petitioners must include a copy of the applicable selection notice with the FY 2026 H-1B cap-subject petition.
Petitioners must also submit evidence of the beneficiary’s valid passport or travel document used at the time of registration to identify the beneficiary.
Petitioners filing for selected beneficiaries based on their valid registration must still submit evidence or otherwise establish eligibility for petition approval, as registration and selection only pertains to eligibility to file the H-1B cap-subject petition.
FY 2026 will begin from October 1, 2025, therefore, the start date of H-1B to be filed will have October 1 or later as the start date.
New Fees and Form Edition
On Jan. 31, 2024, USCIS published a final rule that adjusts the fees required for most immigration applications and petitions. The new fees are effective April 1, 2024. Additionally, a new 01/17/25 edition of Form I-129, Petition for a Nonimmigrant Worker must be used to file H-1B.
Online Filing and Organizational Accounts
On Feb. 28, 2024, USCIS launched new online organizational accounts that allow multiple people within an organization and their legal representatives to collaborate on and prepare H-1B registrations, H-1B petitions, and any associated Form I-907.
USCIS also launched online filing of Form I-129 and associated Form I-907 for non-cap H-1B petitions on March 25. On April 1, we will begin accepting online filing for H-1B cap petitions and associated Forms I-907 for petitioners whose registrations have been selected.
Petitioners will continue to have the option of filing a paper Form I-129 H-1B petition and any associated Form I-907 if they prefer. However, during the initial launch of organizational accounts, users will not be able to link paper-filed Forms I-129 and I-907 to their online accounts.
H-1B Form I-129 Filing Location Change to Lockbox
Starting April 1, 2024, H-1B and H-1B1 (HSC) Form I-129 petitions are no longer filed directly with the USCIS service centers. All paper-based H-1B and H-1B1 (HSC) Form I-129 petitions are now filed at USCIS lockbox locations. This includes cap, non-cap, and cap-exempt H-1B filings.
USCIS will reject H-1B or H-1B1 (HSC) petitions received at a USCIS service center on or after April 1, 2024. There will be no grace period provided.
USCIS has specific mailing addresses for cases that are subject to the H-1B cap. To determine the correct mailing address, please see our Form I-129 Direct Filing Addresses page for regular processing and premium processing.
If a petition is filed at the wrong location, USCIS may reject the petition. Rejected petitions will not retain a filing date. If USCIS rejects a petition because it was filed at the wrong location, it may be refiled at the correct location, or online. H-1B cap subject petitions may be refiled at the correct location, or online, as long as the petition is refiled during the designated 90-day filing window listed on the selection notice.
Receipt Notice Delays
When USCIS receives a timely and properly filed H-1B cap subject petition, the petitioner (and, if applicable, the petitioner’s legal representative) will be provided a Form I-797, Notice of Action, communicating receipt of the petition. Due to increased filing volumes typically seen during H-1B cap filing periods, there are instances where a paper petition is timely and properly filed by mail, but issuance of the Form I-797 is delayed. If you are a petitioner and have confirmation from the delivery service that the petition was delivered, but you have not yet received a Form I-797 confirming receipt of the petition, you should not submit a second petition. If you have confirmation from the delivery service that the petition was delivered and you then submit a second H-1B cap petition for the same beneficiary, you will be considered to have submitted multiple H-1B cap petitions. This will result in denial or revocation of both petitions.
If more than 30 days have passed since the confirmation of delivery and you have still not received a Form I-797, you may contact the USCIS Contact Center for assistance.
If you receive notification from the delivery service, or your tracking information suggests that there may be a delay or damage to the package or that the package was misrouted, you should follow the Delivery Service Error Guidance on the USCIS website.
Cap-Gap for F-1 (including OPT/STEM) students with H-1B filed as a Change of Status
Current regulations allow certain students with a pending or approved cap-subject H-1B petition to remain in F-1 status during the cap-gap period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur were F-1 status not extended for qualifying students. Requirements for a Cap-Gap
- An F-1 student who is the beneficiary of an H-1B petition;
- H-1B is filed as a request for change of status that is filed on time; and
- Current employment authorization ends on or before September 30th, 2024.
The “cap-gap” period starts when an F-1 student’s status and employment authorization expires and, unless terminated, ends on Oct. 1, the required start date of the H-1B cap-subject petition filed on their behalf if seeking cap-gap authorization.
Cap-gap occurs because an employer may not file, and USCIS may not accept, a cap subject H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1 for the following fiscal year, which starts Oct, 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is Oct. 1, but the beneficiary’s OPT employment authorization may expire before the H-1B start date.
Proof of Continuing Status
The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new Employment Authorization Document (EAD) to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, issued to the student by their Designated School Official (DSO). This document serves as proof of continued employment authorization.
If a student chooses to obtain an updated Form I-20, they should provide their DSO with evidence of a timely-filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue an updated Form I-20, showing an extension until June 1.
The student should return to their DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, indicating that the petition was filed and accepted. The Form I-797 must have a valid receipt number. The student’s DSO will issue another updated Form I-20, showing an extension until Oct. 1. In such situations, the student can continue to work while the update to their Form I-20 is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.
Please note the following tips to ensure that a strong petition is filed timely:
- Ready all supporting documents (letters of support, necessary filing fees, right type of supporting evidence, etc.).
- Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about seven business days for the DOL to certify an LCA, so the LCA should also be filed as soon as possible.
- Evidence of Beneficiary’s Educational Qualifications: A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing. If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
- A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).
- If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that.
- If the beneficiary has a foreign academic degree and professional experience letters then we may need to obtain a credential evaluation, a process that can also take a few days.
- Adequate documentation to show that the position is a specialty occupation work. A mere re-writing legal provision will not suffice, a detail explanation with relevant evidence should be provided in the petition.
Can I file H-1B petition if it was denied or currently in RFE or Motions/Appeal Stage?
Certainly yes. However, we would advise employer and the beneficiary to be extra careful about the same mistakes or oversights and do not repeat those in the petition this year. It is advisable to seek second legal opinion from other outside counsel if the employer wants to ensure a cross-check and an additional quality control. Often time a minor oversight about various aspects of the petition, be it job title, occupational code, job duties, educational requirements, requirements of end-client, status violation, could trigger RFE and subsequently a denial if the RFE is not responded
adequately.
Do consider reaching our law office if you like us to do the petition or for a second-opinion or for a review of the prepared LCA and the petition drafted by your other outside counsel or by your in-house legal team. A timely remedial action could potentially avoid the RFE or a potential denial.
(last updated February 7, 2024)
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If you want to learn more about this topic or Cap-Subject H-1B in general or about our legal services for the preparation and the filing of H-1B Electronic Registration for the lottery or the H-1B petition do contact us at (+1) 202 600 7745, or email us at info@adhikarilaw.com