When is a person considered counted against the H1B cap? Is it when the cap case is approved, or does something else have to happen?

Answer

This has never been completely clear. Some attorneys are of the opinion that approval of a cap-subject H1B petition (as long as it is not revoked before October 1st) means that one is counted against the cap. However, the Immigration and Nationality Act talks about “receiving a visa” or “otherwise being granted” H1B status. So, if one has an H1B petition approved for consular processing, but is never issued an H1B visa “stamp,” s/he may not be considered as counted against the cap. The USCIS, however, is not consistent on this issue. One should discuss this complex issue with a qualified attorney. (20.Nov.2017)

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