How to File an H-1B Cap Petition When the Current Degree is Still Underway?

As the H-1B cap filing season is well underway and as the first filing day of March 1st is approaching fast, a common question by H-1B employers or H-1B candidates is whether an H-1B cap petition can (or should) be filed when the foreign national employee is still completing their degree program.   This is very common for foreign students who are graduating in the spring (normally May) but have an employer and are willing to apply for an H-1B under the H-1B “cap” lottery which opens on March 1st.

There is good news and a number of options to make this work.    While USCIS requires the qualifying degree to be in place by the time the H-1B petition is filed,  USCIS does not require the degree to be completed at the time of H-1B cap registration.      There may be ways of using previously-completed (and related) degrees but this option should be evaluated very early as it may affect the way the H-1B cap registration is submitted to USCIS in March.

Background:  Supporting H-1B Employee’s Degree Must be Completed by H-1B Petition Filing

The general rule with respect to using educational degrees for H-1B cap filings is that a degree must be completed before the H-1B petition is filed with USCIS in order for this degree to be usable to qualify its holder for H-1B work visa filing under the H-1B cap.   USCIS has clarified that they would accept degrees as completed when all of the courses and degree requirements have been completed by the H-1B petition filing date and that the only outstanding item remaining is the actual graduation ceremony.

Fortunately, the H-1B cap calendar has shifted in a favorable way to recent foreign graduates.   Under the current H-1B cap process, an H-1B cap registration is submitted on March 1st and the selected H-1B cap registrations are notified towards the end of March and are normally given a three month window to prepare and submit an H-1B petition.   This window often goes until June 30th and essentially it means that the H-1B petition and all requirements (including the candidate’s education) must be completed and submitted by the end of June.

As a result, it is possible and, in our experience:  fairly common, for a candidate to NOT have a completed degree by the time the H-1B cap registration is filed in early March but as long as this degree is completed at some time before June 30th, the candidate can still submit and obtain an H-1B cap approval.

Why Should I Try to File H-1B Cap Before Graduation?

The simple answer is: to increase the chance of getting an H-1B cap petition filing accepted for processing under the random H-1B cap lottery (and ultimately, approved).   Those candidates lucky enough to have an employer willing to sponsor their H-1B even before graduation should consider the possibility of making a case for H-1B cap petition filing even before graduation.   Even if the case is not successful under the H-1B cap lottery, they will likely have at least one (and perhaps more if using F-1 OPT) extra opportunity to do so again in next year’s H-1B cap.

H-1B Cap Filing Based on Prior or Partially-Completed Education

Even when the degree is not completed by the time the H-1B cap petition has to be filed (normally, June 30th), all is not lost.    An H-1B petition normally requires that the position require a bachelor’s degree or higher and that the foreign worker have such a degree.   So, if a master’s degree student is working on completing their master’s degree but the degree requirements are not completed by June 30th, and assuming the undergraduate degree is related to the offered position, the H-1B employer can still file a cap H-1B petition on behalf of the foreign national.   Yes, the H-1B cap will have to be under the general (65,000 visas) cap as opposed to the master’s (additional 20,000 visas) cap; but it still allows a filing and an extra shot at the cap lottery.

Additionally, USCIS accepts work experience in lieu of missing education.  Three years of relevant experience can be used to supplement each missing year of education.  So if an foreign worker has three years of completed education but at least three years of related work experience, it may be possible to make an equivalency argument for a bachelor’s degree.   This may even allow a foreign student who is pursuing their bachelor’s degree in the U.S. and who has at least three years of relevant experience to make a case for H-1B cap filing.

Conclusion

With the high anticipated demand during the H-1B cap season and the anticipated lottery, it becomes increasingly important for H-1B employers and their H-1B visa candidates to take advantage of any available opportunity to increase their chances to ultimately get selected under the H-1B cap.  Being able to file under more than once, in two or three, H-1B cap lottery iterations becomes one of the key (and sometimes overlooked) ways to boost one’s chances.

We are hopeful that this article would allow at least some H-1B employers and workers to evaluate the opportunity of filing for H-1B under this year’s cap even if the degree is still in progress and will not be completed by June 30th.   Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.