As we enter the H-1B 2020-2021 season, U.S. employers and prospective foreign employees from all over the world and from all kinds of occupations are preparing to submit their registrations and enter the annual H-1B lottery. One way to make your registration stand out is to enter the master’s degree exemption, which is a separate lottery for those who possess advanced degrees from eligible institutions. It may sound simple, but there are very specific requirements to follow when applying. Let’s delve into the master’s cap, how it can benefit you, and how you can enter it.
IMPORTANT UPDATE (3/21/2020): Premium processing has been temporarily suspended for all cap-subject petitions in the 2021 season.
IMPORTANT UPDATE (3/30/2020): The USCIS has just announced that it has received sufficient H-1B registrations and has successfully conducted the 2021 lottery. To find out how you can see whether your registration was selected, read this update.
H-1B Visa Annual Quota Background
The H-1B visa is a nonimmigrant work visa that is designated for professionals that work in jobs that are considered specialty occupations. Because the requirements are relatively lenient compared to other work visas for skilled workers, there is usually a large number of registrations that are received each year. To manage this, the USCIS has implemented an annual limit and uses a random lottery to choose the registrations to go into processing.
The regular H-1B cap, which is made up of those who do not qualify for the master’s degree exemption, consists of 65,000 spots. Of these, 6,800 are reserved for residents of Singapore and Chile. Another 20,000 spots are available to those candidates that have a U.S. master’s degree or higher from eligible universities or institutions. This is what is sometimes called the advanced or master’s degree exemption. However, it is not really an exemption as it does not make you exempt from the H-1B master’s cap.
The main benefit of the master’s degree exemption is that it gives your H-1B registration two chances to be selected. If your registration is not selected in the regular cap, it will be entered into the master’s cap for a second chance at selection.
H-1B Master’s Quota Lottery Reordering and Registrations for 2020-21 season
One of the major policy changes that are shaking the world of immigration law is the Buy American and Hire American Executive Order that was signed by President Trump on April 18, 2017. This has mandated that the Department of Homeland Security and the USCIS enact new rules to protect current American workers, prevent immigration fraud, and to ensure that the H-1B visa is geared more toward highly skilled and highly paid workers. This is summed up in this statement from the executive order:
“[the USCIS must] propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.”
On January 30, 2019, the DHS announced a final rule, which makes two significant changes to the H-1B visa lottery process. The final rule became effective on April 1, 2019.
(1) The DHS has created a system in which all H-B petitioners need to register their alien beneficiary before the opening of the lottery window. These electronic registrations will be counted instead of the petitions for the lottery. Here is how it will work:
- Before the H-1B filing window, employers must register their beneficiaries with the USCIS online system.
- The USCIS will then use the lottery system to select from the registered beneficiaries.
- The petitioners whose beneficiaries were selected will then file petitions on April 1st.
The USCIS states this as a method of expediting the process (since it will not have to go through tens of thousands of petitions every year) and also a way to make the filing process less expensive for employers.
(2) Additionally, this new rule will also make a major change with the H-1B master’s exemption. In years past, the 20,000 master’s cap petitions were selected first. Then those that were not selected were entered into the regular cap.
This final rule has reversed that order. As of the H-1B 2019-20 cap season, all registrations – including masters quota eligible registrations – will be up for selection in the regular cap. Those registrations with advanced degree designations that were not selected in the regular cap will be put into the master’s cap afterward. The USCIS estimates that this change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected registrations for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
What Type of Institution is H-1B Masters Cap Eligible?
In order for you to qualify for the H-1B master’s degree exemption, there are two main requirements:
- You must have earned a master’s degree from an institution that is accredited by a nationally recognized agency.
- The U.S. institution should also be public or non-profit in nature.
So, if the institution where you received your degree from is unaccredited or happens to be a for-profit university, your petition will be denied. Please note that you’re also subject to all the other H-1B requirements.
Likewise, if you failed to meet that requirement and your petition was denied by USCIS then you also won’t be eligible to count towards the regular (65,000) cap. For that reason, it’s crucial to ensure you meet the statutory requirements prior to filing. Failure to do so only causes delays and additional frustration.
Let’s recap the H-1B master’s cap requirements again:
- U.S. based institution
- Public or non-profit in nature
- Has been accredited by a nationally recognized accrediting agency
Some formally recognized accrediting organizations include:
- Accrediting Commission of Career Schools and Colleges
- Accrediting Council for Continuing Education and Training
- Accrediting Council for Independent Colleges and Schools
A full list of accreditation programs in the United States can be found here.
Do Not Assume All U.S. Institutions Qualify
You may be inclined to assume that all U.S. based institutions are accredited. Do not make this assumption because it may steer you in the wrong direction.
For example, at one time, the University of Northern Virginia was accredited. However, due to violations, their accreditation was revoked and subsequently shut down by the government in 2013. Graduates from this school were not eligible to file under the H-1B master’s cap but could still file under the regular quota.
The other issue we come across frequently is schools not being public or non-profit. If a school is recognized as proprietary that means they are a for-profit institution and therefore not eligible under the criteria.
H-1B Denials and Requests for Evidence (RFE)
Even if your institution is masters cap-eligible, your petition may still be denied if it is not filed properly. This can be the result of:
- Insufficient evidence – this can result in either USCIS rejection or a Request for Evidence (RFE). This will come in the form of an I-797 form or receipt as well as a comprehensive list of evidence required to verify your institution and degree.
- Inconsistent documentation – It is important that all of the information regarding your institution matches so that the USCIS does not raise its suspicion concerning your case.
It is important to note that the USCIS takes qualifications for your institution very seriously. An RFE may be issued if the USCIS cannot determine if your institution is nationally accredited or if it is a public or non-profit organization.
It is important to note that the H-1B master’s degree exemption is generally only available to those who have already graduated from an accredited public or non-profit institution. If you have completed your coursework or thesis defense but still await graduation, the USCIS will most likely deny your petition.
There have been cases of petitioners submitting a letter of completion from the dean of the institution in these situations. However, these cases have been rare and are becoming more seldom as the demand for H-1B visas increases. As a result, we predict that this will not be a successful tactic for H-1B 2020-2021 season.
If you move or otherwise change your address, you must inform the USCIS. The RFE will be sent to the last known address and you will be held responsible for responding to the request. If no response is given, your petition will be denied.
Because an RFE can drastically delay your petition, it is always advisable to work with your immigration attorney to ensure that your institution qualifies and all of the necessary evidence is filed correctly the first time.
If you’ve been denied for your H-1B visa, another option is to get a job with a cap-exempt employer. Normally, non-profit institutions including universities and colleges fall under this category.
What Options Do I Have After a Denial?
The first thing to understand when considering what to do next is to determine whether your H-1B master’s petition was rejected or denied.
- A rejection means that the evaluating officer saw that you:
- Had incomplete, inconsistent, or incorrect information on your petition
- Did not file the proper fees to their proper places, or;
- Did not have sufficient evidence (i.e. missing documents like degrees, resumes, job descriptions)
- A denial means that the evaluating officer fully processed your case and decided that you or your employer did not meet the qualifications for an H-1B visa.
If your H-1B master’s petition is rejected, then you may simply need to fix the error and refile the petition next season if your registration is selected again.
However, if your petition is denied, you may be able to file a legal motion. There are two main types of these motions:
- You would file a motion to reopen your case if you have new evidence to bring to the table that might change the evaluating officer’s mind if considered alongside the original evidence.
- A motion to reconsider is used when you and your immigration lawyer believe that the evaluating officer was wrong in his or her assessment of your case.
Because they are both legally delicate matters. Neither of these should be attempted without the help of an experienced immigration attorney. As an aside, you will likely receive an H-1B denial letter that prohibits any appeals to a third party.
H-1B Master’s Cap Lottery–How Does it Work?
Under the new system, the master’s cap lottery followed the process outlined below.
- If the regular quota H-1B candidate pool – including masters quota eligible registrations – exceeds 65,000 then a random computer lottery is run to select 65,000 registrations. (Note: the actual numbers may be different due to up to 6800 visas reserved for petitioners from Chile and Singapore)
- USCIS then identifies H-1B master’s cap-eligible registrations from the pool of all registrations rejected in the regular cap lottery. If there are more than 20,000 master’s cap-eligible applications, then USCIS runs a second computer-generated lottery to select 20,000 registrations from the master’s pool.
- The USCIS then sends letters to individuals whose registrations are selected. These sponsors will then be able to file I-129 petitions on behalf of their beneficiaries.
- Those registrations not selected in either the regular or masters quota will be designated as “not selected” in the online portal. No refund will be given for the $10 registration fee.
- Selected petitioners will receive their tracking number to stay up-to-date on H-1B processing times.
How the Pre-Registration System Works
As previously mentioned, each sponsor will submit a registration for their beneficiary rather than a petition. This involves creating an online account after February 24th with the USCIS portal and submitting one registration for each beneficiary. Each sponsor can only submit one petition per beneficiary. Keep in mind, however, that a single sponsor can submit registrations for multiple beneficiaries and beneficiaries can have registrations submitted for them by multiple employers.
On March 1st, at noon, the registration window will open, allowing sponsors to submit their registrations. This window will remain open until March 20th at noon. It doesn’t matter how early or late you submit, it doesn’t affect your chances.
On March 31st, the USCIS plans to release the results of the lottery. It will do this by changing the status of your online registration to one of four statuses:
Selected: This means that your registration was selected in the lottery and your sponsor can submit a petition.
Denied: If your sponsor submitted more than one registration on your behalf, then all of that sponsor’s registrations for you will be disqualified and subsequently denied.
Not Selected: The USCIS will conduct the lottery after March 20th and select the required 80,000 registrations for both the regular cap and the master’s exemption. Any that are not selected will remain in the “Submitted” status until the end of the fiscal year. If the USCIS needs to fill more spaces throughout the remaining 6 months, then it will draw from this pool. Otherwise, all unselected petitions will change to “Not Selected”.
Submitted: This just means that the USCIS has received your registration. If your petition is not selected but also not denied, it will remain in “Submitted” status until October 1st. After which, it will change to “Not Selected”.
When a sponsor registers a beneficiary, he or she will need to designate whether it is for the master’s cap or the regular cap. Sponsors must make sure that they take the eligibility factors we’ve discussed above into account before submitting a registration. If a sponsor submits a master’s cap registration that does not qualify, then the registration will likely still go through, but the subsequent will probably be denied if the registration is selected. Keep in mind that, once a registration is submitted, it cannot be corrected.
Additionally, a second registration cannot be submitted for the same beneficiary. A single sponsor can only submit one registration for each beneficiary in any given fiscal year. If this rule is violated, then all registrations for the beneficiary filed by the guilty sponsor will be denied.
However, keep in mind that a beneficiary can have multiple registrations filed on his or her behalf by different sponsors. Also, a single sponsor can submit registrations for multiple beneficiaries.
Furthermore, the rate of denials and RFEs have skyrocketed over the past several years. With such a short window for submitting registrations and filing subsequent petitions, it is imperative to make sure that necessary supporting documents and fees are properly filed along with the petition. With other visas, a small mistake might delay your visa by a few weeks or months. However, with the time constraints placed on the H-1B, a small error may cause you to have to wait until the next fiscal year to try again.
And lastly, because registrations are far easier and cheaper to submit than petitions, we anticipate that there will be substantially more entries this year than in any of the years prior. As this is a new system, it is entirely possible that the volume of registrations could cause a system failure. If this happens, the process will revert back to the old paper petitioning system.
With a brand new process in place, a short window of success, and the possibility of a system crash, attempting to handle the H-1B process this year without the help of an immigration lawyer could be disastrous for a person’s case. Hiring an attorney will help make sure that your registration has the correct designation, that your petition is properly and promptly filed with the right supporting documents and fees, and that you are prepared in the event of a system failure.
H-1B Master’s Cap Predictions
With the new systems in place, we predict that there will be far more registrations than there were petitions in years past. This is because sponsors are only responsible for a $10 registration fee rather than the several thousand dollars worth of fees that go with a full petition. Therefore, while the new master’s cap reordering will likely increase the chances for master’s registrations to be selected, the expected increase in competition with the lower barrier to entry may outweigh that advantage and ultimately lower an individual’s chances of being selected.
Additionally, for both the master’s and regular cap, the spouses of H-1B holders under H-4 status have, for the past several years, been able to seek employment through the use of Employment Authorization Documents (EAD). However, the current executive administration is seeking to rescind this rule, which would force H-1B spouses to find a different route to employment. Again, this is a good reason to stay up-to-date on the latest immigration news to see if this goes through.
H-1B Masters Degree Exemption Criteria You May Qualify For
A beneficiary can be considered cap-exempt if he or she:
- Has been counted under the cap previously
- Is considered a citizen of Singapore, Chile or Australia
- 6,800 spots are set aside for citizens of Singapore and Chile as part of the free trade agreement.
- Is employed by an H-1B cap-exempt employer
- Last year, some of the top cap-exempt jobs included things like researchers, occupational therapists, research assistants, analysts, biologists, and nurses. Again, you’ll need to ensure that the employer is H-1B cap-exempt before automatically assuming.
Why Is Cap Exemption Important?
Cap-exempt petitions can be valuable for many reasons. They can be filed in order to extend the time an H-1B foreign worker has in the country (essentially an H-1B extension). Second, they can be filed in order to change the details/terms for a current H-1B or transfer employers.
The last reason is a cap-exempt petition can be used to facilitate a concurrent petition (for a second position). Since these are cap-exempt they can file at any point during the year, and are not subject to the time constraints of the registration and petitioning processes.
The important thing to understand is that cap-exempt beneficiaries do not need to go through the registration process, which means they are not entered into the cap at all. If you qualify for a cap-exempt petition, you can simply file the I-129 at any time.
While the master’s cap may exempt you from the regular cap, you will still be subjected to some form of annual lottery. To avoid this entirely, you must file with a cap-exempt employer. These include:
- Institutions of higher education
- Non-profit organizations that are associated with an institution of higher education, and;
- Governmental research organizations
Benefits of cap-exempt employers:
- No numerical limit annually
- No established filing or registration dates
- No set beginning dates for employment
Alternatively, if you are already under H-1B status and you are filing another I-129 for a job transfer or an H-1B extension, then you will not need to be registered and that petition will not be counted against the cap. The only exception to this is if you previously entered the U.S. under a cap-exempt job and are switching to a cap-subject job. In this situation, your cap-subject employer would need to register you during the registration window in March and enter you into the lottery.
Will Premium Processing Help My Case?
Premium processing, the optional service provided by the USCIS that expedites your petition’s processing time to just 15 calendar days for an additional fee, does not increase the probability that your petition will be approved if your registration is selected in the lottery. It only serves to shorten your petition’s processing time.
Also, because of the date constraints on the H-1B (i.e. filing on April 2nd and working on October 1st), expediting your petition will not change these dates. If you are selected and approved you will still need to wait at least six months between April and October before beginning work as an H-1B employee.
Will the H-1B Master’s Cap Help With My Green Card?
The path from an H-1B visa to an employment-based green card can be a difficult one. However, it could potentially be made easier if you possess a master’s degree, here’s why.
Once your registration has been entered into the 2020 master’s degree exemption and your petition has been processed and approved, you will be able to start working that fall under your H-1B. This visa is fortunately considered a dual intent visa, meaning that you can pursue a green card. The first step to getting your green card is choosing which preference level you want to apply for. Here are the main contenders:
- EB-1: This green card is for immigrants with extraordinary achievements, outstanding researchers and professors, and multinational managers and executives.
- EB-2: This one is for those that have exceptional ability, qualify for a National Interest Waiver, or have an advanced degree.
- EB-3: This third level is for those with bachelor’s degrees, those with more than two years of experience (skilled work), and those with less than 2 years of experience (unskilled work)
As you can see, by having a registration that could be entered into the 2020 master’s quota, you have a prime spot for an EB-2 green card. This has the advantage of generally having a much shorter waiting time than the EB-3, which is the green card that most H-1B employees qualify for.
However, it isn’t enough just to have a master’s degree. You also need to have a job with a U.S. employer that requires your degree. The USCIS looks more at your position than it does at your particular qualifications.
If you and your attorney decide that the EB-2 is the right green card for you on account of your advanced degree, your employer (either your H-1B employer or a new one) must obtain a PERM Labor Certification on your behalf before filing an I-140 petition. Once the USCIS receives your petition, that date will be your priority date. You will need to wait until your priority matches or passes the final action dates given in the monthly visa bulletin released by the Department of State. Once that happens, you can submit an I-485 to adjust your status from H-1B to green card.
Because the final action dates for the EB-2 tend to be much sooner than those for the EB-3, your master’s degree could end up shaving months or even years off of your green card waiting time.
Summary of Quota Exemption
These petitions are not subject to the annual quotas:
- H-1B visa amended petitions
- Renewals and extensions
- H-1B transfer petitions
- If your employer is a college/university or other institution of higher education
- If the employer is a nonprofit organization or affiliated to an accredited college/university
H-1B Master’s Exemption FAQ
Does the master’s exemption exempt me from the cap?
No. The word exemption is only used to describe an exception. If your registration is filed in the master’s cap, it will still be subjected to the regular and the master’s lottery.
Do I have to register before the H-1B cap?
Yes, all employers who plan on filing petitions on behalf of H-1B beneficiaries will have to register. If they are picked in the lottery, only then will they file a petition.
Do I have to file a petition in the lottery this year?
Sponsors no longer submit petitions in order to enter the lottery. Instead, beneficiaries must be registered and the USCIS will select registrations. You only need to file a petition if your beneficiary’s registration was selected in the lottery.
Will there be registration every year?
Theoretically, yes. However, the USCIS reserves the ability to suspend the registration process for any year if they encounter technical difficulties. We will keep you apprised of any suspensions.
How would the master’s cap order reversal increase my chances of selection?
In years past, your master’s petition would first be entered into a lottery with tens of thousands of other petitions all vying for just 20,000 spots. If you were not selected, then your petition would be entered into the regular lottery with hundreds of thousands of other petitions and only 65,000 spots (even less if you include those designated for Singapore and Chile).
However, with this new reversal, your master’s registration will be entered with all of the other registrations into the regular cap first. This means that some master’s registrations will be selected in the regular cap without ever having been entered into the master’s cap. All unselected master’s registrations will be entered into the master’s lottery, which will have a smaller amount of competition due to the fact that some master’s registrations had already been chosen in the regular cap.
This is understandably confusing, so we always encourage you to work with your immigration attorney to make an educated decision about your case.
How Our H-1B Attorneys Can Help
Our H-1B attorneys have an excellent record of approvals when it comes to H-1B filings. In addition, we charge a competitive flat fee and have a 100% track record of meeting filing deadlines. Think you don’t qualify or are missing a vital component for the H-1B master’s quota? Contact us to help you find a creative solution or an alternative visa option.
Our H-1B master’s cap prediction is that the cap will be filled within the first five days of the window opening so it’s best to schedule a consultation as soon as possible. Contact us to receive your H-1B visa consultation. We can accommodate individuals who speak English, Spanish, Hindi, and Tamil.
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