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Last year: The H1B cap for fiscal year 2008 (jobs starting between 10/01/2007 and 09/30/2008) was reached on April 3, 2007, by which time over 150,000 petitions were received, exceeding the annual cap of 65,000. All cases received on Monday, April 2, and Tuesday, April 3, were subjected to a random selection lottery to determine which ones were accepted for processing and which ones were returned to the petitioners. The additional cap of 20,000 H-1Bs for holders of U.S. Master's and higher degrees was reached on April 30, 2007.
This year: New H-1B visa numbers became available for FY 2009 for petitions received on or after April 1, for jobs beginning on or after October 1, 2008. On April 8, 2008, USCIS announced that they received enough filings to exhaust both the H-1B cap and the Master's cap for the entire fiscal year. Many petitions received within the initial filing window will be rejected by the random selection lottery. The lottery has been run, so if you have a petition that was filed and received in a USCIS Service Center mailroom between April 1 & April 7, 2008, some time between April 29 and June 2, you will learn whether it was receipted it, or rejected. No more new cap-subject petitions can be filed until April 1, 2009, for start dates beginning October 1, 2009.
The New Rules: A regulation was published on March 24, 2008, to make the filing process fairer.
1) The initial filing window is now five business days, from April 1 to April 7, 2008. All petitions received during this period will be entered in the random selection lottery. Cases selected will be receipted in, cases that lose this lottery will be rejected and returned to petitioners, with documents and filing fees.
2) Duplicate filings are prohibited. If an employer files more than one petition for the same worker, even if they are for different jobs, or Master's cap & regular cap, both petitions will be denied, not rejected.
3) Initial receipts will be pre-screened to identify which cases are allocated to the Master's cap and which ones are allocated to the regular cap, and to flag any duplicates.
4) Cap-exempt cases are also affected: strong documentation must be presented with the initial filing to support the claim that a petitioner or job is cap-exempt, as cases making incorrect claims to cap-exemption will be denied, not rejected.
Are there any other categories that add more visa numbers to the H-1B cap?
No, not for the general applicant pool. Within the existing cap, 6,800 visa numbers are reserved for use by H-1B1 nationals of Chile and Singapore, pursuant to Free Trade agreements with the United States. This reduces the number in the general pool to 58,200. Unused H-1B1 visa numbers allocated to Chile and Singapore are added back to the general pool of visa numbers for the next fiscal year, but they must be used within the first 45 days of the next fiscal year.
(Example: Because the H-1B1 Chile/Singapore Free Trade set-aside was new and unfamiliar, 6,100 of these visas were unused in FY’06, so these numbers were added back to the general pool for the next year, bringing the total number of general H-1B visas available at the beginning of FY’07 up to 64,300)
What about the Master's Cap?
There is a separate pool of 20,000 additional H-1B visa numbers per fiscal year that is available only to candidates who have earned a Master's or higher graduate degree from a U.S. institution of higher education. It does not include foreign graduate degrees, and it does not include professional post-graduate certificate programs. These extra "Master's cap" numbers have been used up by the end of April in the last couple of years; this year they are likely to go as fast as the regular H-1B cap.
WHO IS EXEMPT FROMT THE H-1B CAP?
Some foreign workers are cap-exempt beneficiaries, and some U.S. employers are cap-exempt petitioners.
Foreign workers who already hold H-1B visa status in the U.S. are exempt from the cap if they were counted under the cap when their status was granted. This includes any worker already issued an H-1B visa abroad who has entered the US on that visa to work for the sponsoring employer, and any worker who was granted a change of status to H-1B, evidenced by a Form I-797 approval notice with a replacement I-94 portion. It does NOT include workers who currently hold H1B status in a cap-exempt job, such as a faculty or researchers at a university or government research institution, or physicians at teaching hospitals.
Workers in H-1B status who were cap-subject when they first obtained H status are exempt from the cap when seeking to extend their stay or change jobs. This even applies to workers currently outside the U.S., as long as they held H-1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the U.S.
Certain non-profit employers are exempt from the H-1B cap, but not all types of non-profits qualify. The exemption only covers institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution. The types of non-profits that qualify for this exemption have been construed narrowly: At present, non-profit service, community, policy and arts organizations do not qualify for the cap exemption. Unless the non-profit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner. Note that public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement with a college or university. However, the exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians' practice group affiliated with and located at a university teaching hospital.
How soon can petitions be filed for the next fiscal year?
April 1st. All petitions for a nonimmigrant worker can be filed up to six months in advance of the start date requested, so H-1B petitions for a new fiscal year, which begins on October 1, can be filed as of the preceding April.
What about people whose work authorization will expire before the next fiscal year begins on October 1?
For some types of positions and some individuals, alternative visa categories may be available to allow them to continue working, or at least remain in the United States, until the next fiscal year begins. However, given the length of current H-1B blackouts, there may not be a visa category for which both the job and the individual are currently eligible. This is a high-priority concern for F-1 students graduating in 2008 who have, or will have, OPT (post-completion Optional Practical Training) that expires on or before August 1, 2009. See below. The circumstances of each case should be discussed with counsel, to determine if there is an alternative visa category appropriate to the needs of the employer and the circumstances and qualifications of the foreign worker.
What are the alternatives for F-1 students with OPT?
A new regulation was published on April 8, 2008 that will enable some F-1 students who have an authorized period of Optional Practical Training to extend their OPT for an additional 17 months, extending the total period permitted from 12 months to 29 months. The two groups of students who may benefit from this rule are:
I. Students who have completed a U.S. degree in science, technology, engineering or mathematics, and who accept employment with an employer enrolled in the E-Verify employment eligibility verification program. (The E-Verify program is still error-prone & does not provide the employer with safe harbor protections, so any decision by an employer to enroll in E-Verify should be discussed with counsel.)
II. Students who are beneficiaries of a properly filed H-1B petition and change of status request accepted for processing among the FY'2009 cap cases.
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