Immigration Lawyer New York

 H-1B Visas and the H-1B Cap

What is an H-1B?

A U.S. employer can obtain an H-1B work visa based on an
offer of employment in a professional specialty occupation to any foreign
worker who holds an appropriate degree for the job offered, or a combination of
education and progressive work experience in the specialty equivalent to the
relevant degree.

The regulations define a professional specialty occupation as one that requires
a related 4-year Bachelor’s degree in the specialty, or its equivalent through
combined education and experience, as a minimum for entry-level employment in
that occupation. Foreign degrees must be evaluated by a U.S.-based credentials
evaluation service to determine whether they are equivalent to a U.S. bachelor's
degree or higher. Work experience in the field in lieu of higher education is
evaluated at 3:1, i.e. 3 years of full-time work in progressively responsible
positions is deemed equivalent to one year of college education. Where work
experience is substituted for some or all formal education, an equivalency evaluation
acceptable for H-1B purposes may not be accepted for immigrant visa purposes.

The employer must offer a wage to the alien at or above the
prevailing wage for U.S. workers employed in that geographic area in similar
jobs. The appropriateness of the wage to the offered job and location must be
confirmed with the Department of Labor through the filing of a Labor Condition
Application. **For any visa category that requires an LCA (H-1B, H-1B1, E-3),
 it is very important for the US employer to pay the legal fees and expenses,
and not seek to recoup them from the worker via salary deduction or otherwise.
Payment of legal costs by the sponsored worker is deemed an indicator of fraud
by USCIS, and the Department of Labor will deem such amounts subtracted from 
the actual salary, which will reduce the salary below the amount stated on the LCA, 
and this can lead to fines and other violations.
The H-1B worker cannot be an independent contractor, and must be paid the
offered wage as a salaried W-2 employee, with all payroll taxes withheld: any
amounts paid as commission, discretionary bonus, reimbursed expenses, or
non-employee compensation do not count toward satisfying the wage obligation.

Any questions about whether a job offer is in a professional
specialty occupation, or whether the worker’s education is sufficiently related
to the nature of the offered job, should be discussed with counsel on a
case-by-case basis.

H-1B CAP - The Annual Numerical Limit
FY 2016: USCIS announced on Tuesday, April 7, 2015 that they had received more than enough petitions to meet both the regular cap of 65,000 and Master's cap of an additional 20,000. A total of over 233,000 were received. 
FY 2015: USCIS announced at lunchtime on Monday, April 7, 2014 that both the regular H1B cap and the US Master's cap for the fiscal year to begin on October 1, 2014 was met. 
FY 2014: USCIS announced that the FY 2014 H-1B cap was met on April 5, 2013, including the additional 20,000 for holders of US Master's or higher degrees.

FY 2013:   USCIS announced that the regular H-1B cap of 65,000 was reached on June 11, 2012, and that the additional US Master's degree cap of 20,000 was reached on June 7, 2012.

FY 2012: As announced on November 23, 2011, the H-1B was reached just before Thanksgiving, and all 20,000 cases toward the additional Master's cap of 20,000 had been used as of October 28.

FY 2011: Per a USCIS press release, the annual H-1B cap was reached on January 26, 2011, including both the regular and Master's degree cap. 

FY2010: For 2009 (FY 2010), H-1B cap numbers were used much more slowly than the preceding 4 years, due to vastly reduced hiring because of the economic downturn. The H-1B cap was reached on December 24, 2009.   

FY 2006-2009: While the US economy was strong and hiring demand was high across industries, the H1B cap was exhausted for the upcoming fiscal year in the first week of the preceding April, as soon as petitions could be filed by US employers.

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, beginning on April 1. All petitions received at USCIS Service Centers 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 cases 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 H1B cap-exempt, as cases making incorrect claims to cap-exemption will be denied, not rejected.  Cases that are cap-exempt due to the nature of the employer now require centralized filing at the California Service Center, regardless of where the job is located.

The Newer New Rule:
In the wake of the bailout packages of 2008-'09 for financial institutions, Congress has attached certain restrictions on H-1B filing: In a rule published on 3/20/2009, USCIS posted a Q&A, an additional processing worksheet, and a revision to Form I-129, specifically to the H-1B Data Collection Form, which adds a new question at Part A, question 1.d., which asks if the petitioner has received any TARP funds or funds under various lending facilities authorized by Section 13 of the Federal Reserve Act.  

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 set aside 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. Because this Chile/Singapore cap is never used up, H1B1 visas remain available year-round. 

(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.  This quota does not include foreign graduate degrees, and it does not include professional post-graduate certificate programs. The extra "Master's cap" numbers are used up approximately as fast or faster than the regular 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 have 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.
Public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, and the offered job includes services under such an agreement, but many school districts do have such affiliations. The H-1B petition must include a copy of the affiliation agreement. 
The H-1B cap 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. 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 enables 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 H1B cap cases.

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Karin Wolman is admitted to the bar in the State of New York.
Her practice is limited to U.S. Immigration & Nationality law.

This website is for general information purposes only. This information is not legal advice, and is not intended to serve in place of legal advice. You should consult with an attorney about your specific question or situation. Hiring an attorney is an important personal and professional decision, and should not be undertaken lightly.

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