There are a limited number of H-1B visa numbers available each year and once the annual numerical limitation is exhausted, an employee cannot obtain new H-1B visa number until the beginning of the next fiscal year. An employer may however apply on behalf of an employee for an H-1B 6 months before the fiscal year begins on 10/01/2006 and this is highly recommended. There are several exceptions to the H-1B cap however and an employee will not be subject to the H-1B cap if he or she is already in H-1B status and/or has been counted against the H-1B quota within the last 6 years. Additionally, an employee may not be subject to the cap if his/her employer is a non-profit organization affiliated with an institution of higher education. An employer should consult with their immigration attorney to strategize on this issue to determine if an exemption will be available.

There are often great variations between USCIS Service Centers and officers within Service Centers. These generally are irrelevant to the specifics of an individual case and are common. Petitions which remain pending for a length of time can be expedited through “premium processing,” addressed through another FAQ in this section.