Fiscal Year H-1B (2027)

These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in this FAQ without first seeking advice from a qualified attorney.  

**Updated January 2026**

GENERAL QUESTIONS

Q:          What is a Fiscal Year H-1B?

A:           The USCIS fiscal year runs from October 1 through September 30.  When employers sponsor an employee or future employee for H-1B employment, and this employee has not previously held H-1B status either with the current employer or a past employer, the employee requires a fiscal year H-1B approval.

Q:          Who could benefit from a  Fiscal Year H-1B?

A:           Generally, employers are encouraged to consider entering the lottery for the following individuals:  those employed in F-1, L-1 (especially if from India or China), those working pursuant an H-4 EAD or L-2s, those on TN, E-3 or O status seeking permanent residency. This could include candidates for hire or contractors who are otherwise in the U.S. in a valid status.

Change this year:  Due to the implementation of the $100,000 fee for out of country filings, we generally do not recommend including candidates or employees who are currently physically abroad unless there is a realistic and concrete path for them to be physically and lawfully in the U.S. from April through October 1, 2026.

Strong candidates for the lottery still include individuals who:

• Are already in the U.S. with status valid through October 1, 2026, including F-1 students with status that expires between April and October, and are eligible for cap gap
• Are eligible for change-of-status filing (e.g., no prior status violations, not subject to the J-1 2- year home residence requirement, or are not currently relying on TPS or Asylee-based EADs); and
• Can plan to avoid international travel during the cap season, if selected in the lottery.

Q:          How many Fiscal Year H-1Bs are available?

A:           Under current laws, the USCIS may approve up to 65,000 new H-1Bs each fiscal year, plus an additional 20,000 for U.S. Master’s or higher degree graduates.  These limits are known as the H-1B Cap (“Cap”).

Q:          Are there any exemptions to the Fiscal Year Cap?

A:           Yes, employers who are nonprofit research organizations, governmental research organizations, institutions of higher learning or affiliated organizations may sponsor H-1B employees, and these H-1Bs are not subject to the Cap.

In addition, as a result of the United States’ Free Trade Agreements with Chile and Singapore, several H-1B visas are allocated each fiscal year for citizens of Chile and Singapore.  These 6,800 visas are exempt from the Cap.

Q:          When may an employer file the petition for a Fiscal Year H-1B visa?

A:           The USCIS accepts H-1B petitions no more than 6 months in advance of the fiscal year, which means April 1 at the earliest.  Since 2020 (for Fiscal Year (FY) 2021), USCIS has used an electronic Registration process, followed by accepting full petitions within a 90-day window.  For more on Registration, see below.

First, the lottery is held for the 65,000 H-1Bs under the regular cap.   Once sufficient numbers have been selected under the H-1B regular cap, USCIS will then select 20,000 U.S. Master’s or higher degree beneficiaries. 

Q:          What is Registration? 

A:           Starting in 2020, the USCIS implemented an electronic pre-registration process (“Registration”).  

All petitioners (employers) must use a USCIS Online account for this process, and will be required to pay a $215 fee and register each employee they wish to sponsor for H-1B status during the initial registration period, from March 4 through March 19, 2026.

Once the registration period closes, the USCIS will hold a lottery and begin notifying selected registrants by March 31. Each entity that submitted a valid registration on behalf of the individual will then have at least 90 days to file the H-1B petitions, including approved Labor Condition Applications. 

Same as last year, USCIS will follow a "beneficiary-centric" approach, which means that each beneficiary will be entered into the lottery once (based on their passport or valid travel document number) regardless of how many registrations are submitted on behalf of that individual. If selected, each employer that submitted a registration on the beneficiary's behalf will be notified and may file a petition. There is no USCIS mechanism for notifying companies other entities are submitting H-1B petitions on behalf of an individual until after the petitions are approved and the beneficiary chooses to work for another employer.

Approval of FY H-1B petitions is still dependent on USCIS adjudication (for qualifying specialty occupation, employer-employee relationship, etc.). Registration will require specific biographical and immigration data about each employee.

 Change this year:  Beginning with this coming fiscal year, USCIS is implementing a wage-weighted H-1B lottery selection system. Under this system, registrations are ranked based on the offered wage level (I-IV) associated with the position, rather than being selected purely at random. Registrations tied to higher wage levels are given priority in the selection process, while lower-wage registrations remain eligible but may have reduced selection odds.As a result, prior to registration, employers must confirm the SOC codes, OEWS wage levels, and areas of intended employment for each position. If selected, the subsequently filed Labor Condition Application (LCA) and H-1B petition will need to be consistent with the information provided at the registration stage.

Q:          How will the employer be notified if they “win” or “lose” the lottery?

A:           After each random lottery is completed, the USCIS will issue “Selection Notices” electronically for selected registrants with instructions on how to submit an H-1B petition (including the service center to which it should be sent, as well as the filing deadline for it). Depending on how many petitions it receives during the first 90-day window, USCIS may conduct multiple selection rounds and may issue additional Selection Notices based on the initial Registration data. Registrants and representatives might not be notified until the end of the fiscal year process if they are not selected.

As noted above, each employer that submits a registration on a beneficiary's behalf will be notified of the selection and may file an H-1B petition on that beneficiary's behalf.

1. What are the chances of being selected for a Fiscal Year H-1B visa in the lottery?

A:           The chance of being selected in the lottery depends on the overall number of registrations. Overall, USCIS may select more than 85,000 registrations in an effort to reach the fiscal year numerical allocations. The odds are slightly more favorable for the 20,000 U.S. Master's or higher degree holders.

USCIS reported the following statistics: 

Cap Fiscal Year	Total Registrations	Eligible Registrations*	Eligible Registrations for Beneficiaries with No Other Eligible Registrations	Eligible Registrations for Beneficiaries with Multiple Eligible Registrations	Selected Registrations
2021	274,237	269,424	241,299	28,125	124,415
2022	308,613	301,447	211,304	90,143	131,924
2023	483,927	474,421	309,241	165,180	127,600
2024	780,884	758,994	350,103	408,891	188,400
2025	479,953	470,342	423,028	47,314	135,137
2026	358,737	343,981	336,153	7,828	120,141

 Q:          If the employer receives a receipt notice, does that mean for sure that it will receive approval of the H-1B petition?

A:           No, the USCIS must still evaluate the H-1B petition for approvability based on laws and eligibility requirements.  For example, the USCIS will evaluate whether the job being offered is in a “specialty occupation” which requires a minimum of a Bachelor’s degree in a specialized field of study, or perhaps whether the Bachelor’s degree held by the candidate is related to the offered job.

If the USCIS has any questions, they will issue a Request for Evidence (“RFE”) and provide the employer with a deadline by which to answer the questions and/or provide more information.

Q:          How long will it take for the USCIS to approve the H-1B petition if an RFE is not issued or if an RFE is issued?

A:           In recent years, WSM received approval notices filed under normal processing on average within six months.  However, if an RFE is issued, the response will be due within 87 days. The complexity and breadth of the RFE will determine how much of that time will be needed to put together a strong response. How quickly you can expect a final decision after that will depend if the case is filed via Premium Processing vs regular processing. If the case was filed via PP (or you choose to upgrade it to PP with the RFE response), you can expect a final decision within 15 business days of filing the RFE response. If regular processing, regular processing times will go back into effect.

EMPLOYEE QUESTIONS

Q:          Do I have work authorization while the Fiscal Year H-1B petition is pending at the government? 

A:           For those holding F-1 Optional Practical Training (OPT) status expiring before April 1, and where OPT status cannot be extended to April 1 or beyond, a timely filed H-1B petition will not extend OPT work authorization. 

If OPT status expires after April 1 but before October 1, and if the employee is selected in the lottery following Registration, the employee is eligible for Cap Gap protection upon filing the H-1B petition.

Q:          What is Cap Gap protection?

A:          Cap gap allows certain  F-1 OPT or STEM OPT holders to continue working  if their OPT expires April 1 or later but before April 1 of the following year,  provided they are selected in the lottery following Registration and has timely filed an H-1B petition. “Timely filed” means that, in order for cap gap to be available, the fiscal H petition must be received by USCIS no later than the date when the OPT EAD or STEM OPT EAD expires. This is known as “Cap Gap” protection.  

Since  the December 2024 Final Rule "Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers"  Cap Gap  work authorization now extends through April 1 of the following calendar year. This change is meant to address USCIS processing delays and the reality that H-1B petitions filed for cap-gap beneficiaries have remained unadjudicated by October 1 each year.

If the H-1B petition is denied, Cap Gap protection ends and the employee must cease work. Likewise, if an H-1B is not selected in the lottery (“rejected”), the employee will hold work authorization only through the duration of their F-1 OPT.

Q:          Is there a Cap Gap for individuals who are not in F-1 status?

A:           No. Cap Gap protection is available only to individuals holding F-1 student status who are in a qualifying period of OPT, including STEM OPT. 

Examples:

• J-1: If a J-1 employee’s status expires on June 1, the individual must stop working on that date, even if an H-1B petition has been timely filed. The employee must depart the U.S. following any applicable grace period. Unless they can change to another status besides H-1B, it may not be possible for an employer to file an H-1B petition for them this year. See the “Out of Country” section below.
• L-1 or TN: Individuals in L-1 or TN status whose status expires before October 1 may not continue working past their expiration date solely because an H-1B petition is pending. In these cases, it may be necessary to file an L-1 or TN extension with USCIS to allow the individual to remain in status and in the U.S. through October 1, 2026, thereby preserving eligibility for an H-1B Change of Status filing.

Q:          What must I do to take advantage of Cap Gap?

A:           The individual should contact their Designated School Official (“DSO”) with evidence of the H-1B change of status request (typically, a receipt notice, Fed Ex receipt or approval notice) to obtain an endorsed Form I-20 indicating Cap Gap authorization.

Q:          What is an Out of Country H-1B petition versus a Change of Status H-1B petition?

A:           The employer must choose the filing posture based on the employee’s current status, work authorization end date, and ability to remain in the U.S. continuously through October 1.

Change of Status (COS):
If the employee is in valid nonimmigrant status and able to remain continuously in the U.S. through October 1, the employer can file the H-1B petition as a Change of Status. Eligibility for Change of Status generally requires that the employee has maintained lawful status in the United States; more complex immigration histories may increase adjudication risk and could result in an “Out of Country” approval.

If approved, H-1B status springs into effect automatically on October 1, 2026, without requiring internationally.  Change of status approvals are issued with an I-94.

Change of Status filings do not trigger the $100,000 out-of-country fee.

Out-of-Country (OOC):
If the employee cannot remain in valid status through October 1, the employer may file an Out-of-Country (or consular notification) petition. The employee must obtain an H-1B visa stamp abroad (unless Canadian) and may begin H-1B employment only after admission to the U.S. in H-1B status.

Out of country approvals do not include an I-94.

Most Out-of-Country filings now trigger a $100,000 government fee, unless a narrow exception applies.

Q:          Can I travel outside the U.S. once the Fiscal Year H-1B petition has been filed with the USCIS?

A:         International travel during the fiscal-year H-1B process carries heightened risk. Travel feasibility depends on filing posture (Change of Status vs. Out-of-Country), timing, visa stamp validity, Cap Gap eligibility, and current consular conditions.

Given increased scrutiny, processing delays, and unpredictability, we currently recommend that all individuals selected in the H-1B lottery avoid international travel until at least October 1, 2026 and receipt of an H-1B approval notice, unless specifically advised otherwise by counsel.

Q:          If I need to apply for an H-1B visa stamp, when is the earliest I can do this?

A:           Most U.S. consulates allow visa applications up to 30 days before the H-1B start date. Entry is permitted up to 10 days before employment begins, but work may not commence until the start date on the approval notice.

For Out-of-Country cases, employment in the U.S. may not begin until the visa is issued and the individual is admitted to the U.S. in H-1B status.

Q:           Are H-1B applicants now subject to social media and online-presence screening?

A:            Yes. Effective December 15, 2025, the U.S. Department of State implemented a significant expansion of its online-presence screening protocols. This means that all H-1B and H-4 visa applicants are subject to mandatory review of social media and other online activity as part of the visa adjudication process.

The DOS had previously implemented similar screening requirements for F, M and J visa categories.

What’s new under this policy?

• Public social media required: Applicants are instructed to ensure that their social-media accounts are set to public so consular officers can review online content during security vetting.
• LinkedIn and resume review: According to reporting, consular officers are directed to review LinkedIn profiles and resumes to assess whether applicants have worked in certain areas, including activities related to misinformation, disinformation, content moderation, fact-checking, compliance, or online safety.
• Potential ineligibility findings: Officers are instructed to pursue a visa ineligibility finding if they uncover evidence suggesting an applicant engaged in censorship or attempted censorship of protected expression in the United States.
• National security focus: The Department of State has reiterated that every visa adjudication is treated as a national security decision, and online presence is now a routine component of that assessment.

What should applicants and employers expect?

• Longer processing times: Expanded screening is expected to result in longer adjudication timelines. Some applicants may be subject to follow-up interviews or administrative processing.
• Travel and scheduling impacts: Employers and employees should plan for reduced appointment availability, longer visa turnaround times, and an increased risk of travel disruptions for both H-1B employees and H-4 dependents.
• Advance preparation recommended: Applicants should carefully review and reconcile their online presence (including LinkedIn and other public profiles) for accuracy and consistency before scheduling international travel or visa appointments.