The Annual Cap
H-1B Cap Explained
The “H-1B cap” is the annual numerical limit on new H-1B petitions that may be granted within a fiscal year to those who do not already hold this visa status, set by the statute at Section 214(g) of the Immigration & Nationality Act. The unrestricted “regular cap” is 65,000 new H-1Bs per fiscal year, and the additional “U.S. Master’s cap” of another 20,000 per fiscal year is reserved for workers who earned U.S. graduate degrees from accredited, non-profit institutions of higher education. Graduate degrees earned at for-profit or unaccredited schools do not count toward the US Master’s degree cap.
H-1B Fiscal Years
- FY2023: USCIS has announced the dates for the upcoming electronic H-1B cap lottery registration period. The myUSCIS system will open for the creation of new “Registrant” accounts by employers at noon Eastern on February 21, 2022. H-1B cap registrations can be filed by employers or their attorneys from noon Eastern on March 1 to noon on March 18, and the first-round selection notifications will go out to successful registrants on March 31, with additional sections possible in July and November. Those who receive email notifications that their registrations were selected my file petitions in the 90-day period beginning on April 1.
- FY2022: In its second year, the electronic pre-registration process hit its stride, running the electronic registration process between March 9 and March 25, and notifying registrants of cases selected in the first round by March 31. USCIS received a total of 308,613 registrations, from which 87,500 were selected in the first round, eligible to file petitions in a 90-day window beginning April 2. Given the gap between registrations selected and the actual number of H-1B petitions filed, plus some filings rejected or denied, USCIS announced a second round of 27, 717 additional H1B cap selections on July 29, 2021, and a third round on November 19, 2021, each followed by a 90-day petition filing window.
- 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 had a span of 90 days in which petitions could be filed for cases selected in the initial round.
- FY 2020: Premium processing was unavailable for cap cases filed in April 2019, and the order of the selection lottery was reversed: they ran the Master’s cap lottery first.
- FY 2019: Premium processing was unavailable for cap-subject H-1B cases, and the cap was 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, so both regular cap & US Master’s degree cap were oversubscribed.
- FY2017: USCIS received over 236,000 petitions in the first week of April 2016. Both the regular cap & Master’s cap were oversubscribed.
H-1B Cap Qualifying Entities
A regulation was published on March 24, 2008, to make the H-1B cap-subject petition filing process fairer, but this process was before USCIS instituted the electronic registration & selection lottery.
- The initial filing window was five business days, beginning on April 1, or on the first business day of April if the 1st falls on a weekend. All H-1B petitions received at USCIS Service Centers during that period were entered into a random selection lottery, but really 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 were receipted & filing fee checks were cashed. Cases not selected in the lottery were rejected and eventually (around late June/early July) returned by regular mail to petitioners or their attorneys, with all supporting documents and filing fees.
- Duplicate filings prohibited. If any employer files more than one H-1B petition for the same foreign worker, even for different jobs, or one under the Master’s cap and one under the regular cap, then both petitions were denied, not rejected.
- Initial receipts were pre-screened to identify which cases were attributable to the Master’s cap and which cases to the regular cap, and to flag any duplicates by the same employer for the same worker.
- Cap-exempt cases are also affected: documentation must be presented with the initial petition filing to support the claim that either the petitioner or the job is H-1B cap-exempt; cases making incorrect claims to H-1B cap-exemption are to be denied, not rejected. Cases cap-exempt due to the nature of the employer must be filed with the California Service Center, regardless of where the job is located.
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 between those two countries and the United States. This reduces the number in the general H-1B pool to 58,200. Unused H-1B1 visa numbers allocated to Chile and Singapore are added back to the general pool of H-1B visa numbers for the next fiscal year, but 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 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 “US Master’s cap” numbers are used up approximately as fast or faster than the regular H-1B cap. It is critical to note, especially for first-round H-1B cap lottery selections, that the foreign worker must have already completed the degree at the time the H-1B petition is filed with USCIS, so an employer cannot file a Master’s cap registration in March for a candidate who will not have earned their US graduate degree until May. The other issue to watch out for with these US Master’s cap registrations is whether the Master’s degree in question is relevant to the offered H-1B professional specialty occupation: you cannot claim eligibility for the US Master’s cap in the registration lottery, and then if selected, file an H1B petition for that worker based on a job offer that relies on their undergraduate degree.
If you would like H-1B visa cap help, contact Karin Wolman or a consultation today!