H-1B Cap Issues

H-1B Cap-Exempt Program Explained

The “H-1B cap” is the annual numerical limit on new H-1B petitions that may be granted within a fiscal year, as set forth in the statute at Section 214(g) of the Immigration & Nationality Act. The unrestricted “regular cap” is 65,000 per fiscal year, and the additional “U.S. Master’s cap” of another 20,000 per fiscal year is reserved for those with graduate degrees from accredited, non-profit institutions of higher education in the United States. Graduate degrees earned at for-profit or unaccredited schools will not count toward the US Master’s degree cap.

H-1B Fiscal Years

  • FY 2021: A new electronic pre-registration process was introduced for the H-1B cap lottery. Lottery registrations were filed electronically between March 1 and March 20, 2020, and employers whose cases were selected in the initial lottery were notified by email as of March 31st. Instead of requiring cap-subject petitions to be filed in the first five business days of April, winners selected for processing must file in the next 90 days. This means that on or shortly after June 30, USCIS will be able to get accurate count of how many of those registrations initially selected did not result in a petition being filed during the 90-day period thereafter, so they may release additional H-1B cap selections at that time, and more numbers piecemeal, as some of the petitions filed get rejected or denied.
  • FY 2020: Premium processing unavailable for cap cases filed in April 2019, and the order of the selection lottery was reversed.
  • FY 2019: Premium processing was made unavailable for cap-subject H-1B cases, and the cap was again reached and oversubscribed in the first week of filing. On April 6, 2018, USCIS announced they had received a total of 190,098 H-1B petitions against the available cap quota of 85,000 (65,000 regular & 20,000 U.S. Master’s degree cases). On May 15, 2018, USCIS announced it had completed issuing receipts for cap-subject H-1B cases, and would begin returning petitions not accepted for processing under the cap.
  • FY 2018: Premium processing became unavailable for all H-1B petitions as of April 3, 2017, for up to six months, so no H-1B cases were eligible for Premium service for filings received on or after 4/3, including extensions of stay, changes of employer, and petitions by cap-exempt employers. USCIS received 199,000 new petitions between April 3 & April 7, once again making both the regular cap and US Master’s degree cap oversubscribed.
  • FY2017: USCIS received over 236,000 petitions in the first week of April 2016. Both the regular cap & Master’s cap were oversubscribed.
  • FY 2016: Both the regular cap & Master’s cap were oversubscribed in the first week of April 2015.
  • FY 2015: Both the regular cap & Master’s cap were oversubscribed in the first week of April 2014.

H-1B Cap Qualifying Entities

A regulation was published on March 24, 2008, to make the H-1B cap-subject petition filing process fairer.

  1. The initial filing window is five business days, beginning on April 1 or the first business day of April if the 1st falls on a weekend. All H-1B petitions received at USCIS Service Centers during this period will be entered into a random selection lottery. Really, it is two lotteries, one for holders of U.S. Master’s degrees from a non-profit accredited school, and a second one for all remaining cases. Cases selected will be receipted & filing fee checks will be cashed. Cases not selected in the lottery will be rejected and returned to petitioners, with supporting documents and filing fees.
  2. Duplicate filings are prohibited. If any employer files more than one H-1B petition for the same foreign worker, even if they are for different jobs, or one is Master’s cap and one under the regular cap, then 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 either the petitioner or the job is H-1B cap-exempt; cases making incorrect claims to cap-exemption will be denied, not rejected. Cases that are cap-exempt due to the nature of the employer must be filed with the California Service Center, regardless of where the job is located.

The TARP Funds Disclosure 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, H-1B1 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 fast or faster than the regular H-1B cap.

If you would like H-1B visa cap help, contact Karin Wolman or a consultation today!

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