H-1B Cap Season | USCIS (2023)

We use the information provided during the electronic registration process to help us determine if a petition is subject to the congressionally mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”) or the advanced degree exemption. The advanced degree exemption is an exemption from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher and is available until the number of beneficiaries who are exempt on this basis exceeds 20,000.

Congress set the current annual regular cap for the H-1B category at 65,000. Not all H-1B nonimmigrant visas (or status grants) are subject to this annual cap. Please note that up to 6,800 visas are set aside from the 65,000 each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements. Unused visas in this group become available for H-1B use for the next fiscal year’s regular H-1B cap.

H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap (see the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229). H-1B workers in Guam and the CNMI are exempt from the H-1B cap if their employers file the petition before Dec. 31, 2029. Employers cannot file a petition or an extension request for an employee more than six months before the intended employment start date.

H-1B cap-subject petitions, including those eligible for the advanced degree exemption, may not be filed unless based on a valid and selected registration for the beneficiary named in the petition unless the registration requirement is suspended.

You may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. The specific filing period and filing location for your petition will be located on your H-1B Registration Selection Notice or on the USCIS website in the event the registration requirement is suspended.

1. Complete all required sections of Form I-129, Petition for a Nonimmigrant Worker, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement in accordance with the regulations and form instructions. You can find the H Classification Supplement beginning on page 13 of Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement beginning on page 19. Current versions of forms are available at uscis.gov/forms.
2. You must indicate a start date of Oct. 1 or later (of the applicable fiscal year, and 6 months or less from the receipt date of the petition) on your petition or your petition will be rejected or denied.
3. You must provide a copy of the H-1B Registration Selection Notice for the registration filed by your organization on behalf of the beneficiary with the petition. Ensure that you have also entered the corresponding “Beneficiary Confirmation Number” on the H Classification Supplement (Page 13, Question 5).
4. Ensure that any information provided during the electronic registration process matches the information provided on the petition. If any information does not match, you should provide an explanation with your petition and supporting documentation as to why there was a change or why the information does not match. If information on the registration and petition does not match, USCIS may reject or deny the petition. USCIS encourages the use of a brightly colored coversheet flagging the issue as a good way to ensure that this is reviewed upon receipt.
5. Make sure each form has an original signature, preferably in black ink. Ensure all signatures comply with the requirements described in theUSCIS Policy Manual.
6. Include signed checks or money orders with the correct fee amount. Please submit separate checks for each fee associated with the filing.Place all checks on the top of your petition packet.
7. Submit all required documentation and evidence with the petition at the time of filing to ensure timely processing.
8. Ensure that the Labor Condition Application (LCA) properly corresponds to the position in your petition.
9. You must file the petition with the correct USCIS service center. See the section below on Where to Mail Your H-1B Petition.

Note: It is your responsibility to ensure that Form I-129 is completed accurately and submitted properly.

Labor Condition Application (LCA)

When filing your H-1B petition with USCIS, you must include evidence that an LCA (ETA 9035) has been certified by the U.S. Department of Labor. This may include a copy of the signed, certified LCA. (Note: USCIS encourages petitioners to keep Department of Labor LCA processing times in mind when preparing the H-1B petition and to plan accordingly.) If the LCA was previously submitted in a petition that has been approved, you must submit a list including the name and USCIS case receipt number of any foreign worker who has previously used the LCA. You may not use an LCA for more workers than specified in Part B, Question 7 of the LCA.

Please see the Department of Labor’s Office of Foreign Labor Certification website for more information on the LCA process.

Evidence of Beneficiary’s Educational Background

You must submit evidence of the beneficiary’s education credentials (with English translations when applicable) at the time you file your petition. If the beneficiary has met all of the requirements for a degree, but the degree has not yet been awarded, you may submit the following alternate evidence:

• A copy of the beneficiary’s final transcript; or
• A letter from the registrar confirming that the beneficiary has met all of the degree requirements. If the educational institution does not have a registrar, then the letter must be signed by the person in charge of educational records where the degree will be awarded.

If you indicate that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at the time you file your petition.

You must file your petition with the correct service center, as indicated on your Registration Selection Notice. We have specific mailing addresses for cases that are subject to the H-1B cap. To determine the correct mailing address for the service center named on your Registration Selection Notice, see our Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Please read the filing instructions carefully. If you file your petition at the wrong location, we may reject it. Rejected petitions will not retain a filing date. If your petition is rejected because it was filed at the wrong location, you may refile your rejected petition with the correct service center as long as the petition is refiled during the designated 90-day filing window on your Registration Selection Notice.

There are different fees depending on the type of H-1B petition you are submitting. Please refer to the H and L Filing Fees for Form I-129, Petition for a Nonimmigrant Worker page for detailed instructions on H-1B fees. All petitioners must pay a base filing fee for each petition filed. Go to theForm I-129, Petition for a Nonimmigrant Worker web pagefor the current filing fee amount.

In addition to the base filing fee, you may need to pay one of the following fees for a petition subject to the cap:

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:

• $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
• $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

The ACWIA fee information is available in Section 2 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement on pages 19-21 of Form I-129.

Fraud Prevention and Detection fee:

• $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)

Public Law 114-113 fee:

• $4,000 for petitioners who:
  • Employ 50 or more employees in the United States and more than 50% of those employees are in H-1B or L-1 nonimmigrant status. You must submit this fee with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers.

Checks

Check must be:

• Payable to the Department of Homeland Security;
• Include the proper amount and signature.

We prefer that you submit a separate check for each fee. For example, if you are required to pay the base filing fee, the fraud fee, and the ACWIA fee, you should submit three separate checks. If you only submit one check as combined payment for all applicable fees and certain fees do not apply or are incorrect, we will reject your H-1B petition.

Money Orders

Money orders must be properly endorsed.

Incorrect Filing Fee

We will reject all petitions submitted with the incorrect filing fee.

Preferred order of documents at time of submission:

1. Form G-28 (if represented by an attorney or accredited representative)
2. Copy of the Registration Selection Notice for the Beneficiary Named in the Petition
3. Form I-129, Petition for a Nonimmigrant Worker
4. Addendums/Attachments
5. H Classification Supplement to Form I-129 and/or Trade Agreement Supplement to Form I-129 (for H-1B1 Chile-Singapore petitions)
6. H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement
7. All supporting documentation to establish eligibility. Provide a table of contents for supporting documentation and separate the items as listed in the table.
8. Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
9. SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
10. SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
11. Form I-566 if the beneficiary is a current A or G nonimmigrant
12. Department of Labor certified LCA, Form ETA 9035
13. Employer/attorney/representative letter(s)
14. Other supporting documentation

How to mail multiple petitions together

If you will include multiple petitions in the same package, please place the individual petitions into separate envelopes within the package.

Form G-28, Notice of Entry of Appearance as Attorney or Representative

If you will be represented by an attorney or other accredited representative, submit a properly completed Form G-28, Notice of Entry of Appearance as Attorney or Representative. For further information on Form G-28, please see our Filing Your Form G-28 page.

Form I-129, Petition for a Nonimmigrant Worker

• Complete all required sections of the form accurately and in accordance with the regulations and form instructions.
• H-1B cap petitions and advanced degree exemption petitions for the FY 2023 cap must include an employment start date of no earlier than Oct. 1, 2022. You must indicate a start date of Oct. 1, 2022 or later (and six months or less from the receipt date of the petition) on your petition or your petition will be rejected or denied. Do not file petitions earlier than six months before the requested employment start date. We will reject H-1B petitions requesting a start date of “As Soon As Possible” or “ASAP.”
• Ensure that you have entered the “Beneficiary Confirmation Number” on the H Classification Supplement (Page 13, Question 5).
• Ensure that the petition is properly signed.
• Petitioners should enter their own address in Part 1, question 3 of the Form I-129. This will ensure that the I-797 receipt and approval notices are sent to the petitioner.
• While not required information if the beneficiary is outside the United States, you may include the beneficiary’s passport number on Form I-129. The passport number, when available and included on Form I-129, may help USCIS to confirm that the beneficiary named in the registration notice is the same individual as the beneficiary named in the petition and avoid processing delays.
• Ensure that the beneficiary’s name is spelled properly and that their date of birth is displayed in the proper format (mm/dd/yyyy). Also, review the country of birth and citizenship and the I-94 number (if applicable) for accuracy.
• Ensure that any information provided during the electronic registration process matches the information provided on the petition. If information between the registration and petition does not match, the petition may be rejected or denied. If any information does not match, you should provide a written explanation and supporting documentation as to why there was a change or why the information does not match.
• If the beneficiary is seeking an extension of stay or change of status, the petition should include evidence (such as a Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
• Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129

• You can find the H Classification Supplement beginning on page 13 of Form I-129.
• Please be sure to complete all required sections of the form accurately and in accordance with the regulations and the form instructions.
• In listing previous periods of stay in H or L nonimmigrant classification (question 3), please also include the actual nonimmigrant classification held (such as H-1B or L-1).
• The petitioner must sign the form, preferably in black ink.

H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement

• You can find the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement beginning on page 19 of Form I-129.
• Please be sure to complete all sections of the form accurately.
• Make sure you are filing a valid edition of Form I-129, as specified in the Edition Date section on the Form I-129 page.

If you filed an H-1B cap petition in a timely manner but received notification from the delivery service that suggests that there may be a delay or damage to the package or that the package was misrouted, during the designated 90-day filing window on your Registration Selection Notice you may file a second H-1B petition with a new fee payment and the following:

• An explanation as to why a second petition is being filed, with supporting evidence, such as the notice from the delivery service; and
• A request to withdraw the first petition filed for the H-1B cap.

If you do not include these items, you will be considered to have submitted duplicate petitions. USCIS will deny or revoke multiple or duplicative petitions filed by the same petitioner, for the same H-1B worker in the same fiscal year, and will not refund the filing fees.

If you properly file a second H-1B petition and withdraw the first, USCIS will withdraw the first petition and proceed with adjudication of the second petition.