As we enter the H-1B 2019-2020 season, US employers and prospective foreign employees from all over the world and from all kinds of occupations are preparing to file their petitions and enter the annual H-1B lottery. On April 1st, 2019, the lottery window will open and the USCIS will likely be flooded with a lot more petitions than the number of H1B visas available. One way to make your petition 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.
- The Department of Homeland Security (DHS) has posted a final rule (on 01/30/2019) amending regulations governing H-1B cap-subject petitions, including those eligible for the Masters degree exemption. It reverses the order by which the USCIS selects H-1B petitions under the H-1B regular cap and the masters cap (advanced degree exemption). This post will be updated soon to provide further details.
- The premium processing suspension ended on January 28, 2019. Unless the USCIS enacts a new suspension, petitioners will be able to file H-1B petitions with premium processing during the lottery window in April for the H-1B 2020 season.
H-1B Visas 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 petitions that are received each year. To manage this, the USCIS has implemented an annual limit and uses a random lottery to choose the petitions to go into processing.
The regular H1B cap, which is made up of those who do not qualify for the master’s degree exemption, consists of 65,000 petition 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 H1B masters cap.
In total, of all the petitions sent in between April 1st and the end of the lottery window, only 85,000 will be selected for processing. A computer will randomly select the winners so that there is no possibility for bias. Remember, just because your petition was selected doesn’t mean that your petition has been approved, only that it now has the opportunity to be approved. If your petition was not selected, then you will need to wait until next year’s filing season to try again.
The main benefit of the master’s degree exemption is that it gives your H-1B petition two chances to be selected.
What Type of Institution is H1B 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, you may still be denied entry into the master’s quota if your petition 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 2019-2020 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 you 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.
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.
IMPORTANT UPDATE: H1B Master’s Quota Lottery Reordering for 2019-20 season
One of the major policy changes that is 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 will become effective on April 1, 2019.
(1) The DHS is in the process of creating a system in which all H-B petitioners would need to register their alien beneficiary before the opening of the lottery window. However, the electronic registration requirement will be suspended for the fiscal year (FY) 2019-2020 H1B cap season. Once this requirement is implemented for the future cap seasons, the electronic pre-registrations will be counted instead of the petitions for the lottery. Here is how it would work.
- Before the H-1B filing window, employers would register their beneficiaries with the USCIS.
- The USCIS would then use the lottery system to select from the registered beneficiaries.
- The petitioners whose beneficiaries were selected would then file petitions on April 1st.
The USCIS states this as a method of expediting the process (since it would 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. It also states that this registration system is still being tested, and will not completed in time for the 2020 filing season. It’s expected – but not confirmed – that the system will be ready next year for H1B 2021 cap season.
(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 will reverse that order. Starting H1B 2019-20 cap season, all petitions -including masters quota eligible petitions – will be up for selection in the regular cap. Those petitions with advanced degree designations that were not selected in the regular cap will be put into the master’s cap afterward. USCIS estimates that this change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
H-1B Master’s Cap Lottery–How Does it Work?
Under the new system – starting H1B 2019-2020 season – the master’s cap lottery followed the process outlined below.
- If the regular quota H-1B candidate pool – including masters quota eligible petitions – exceeds 65,000 then a random computer lottery is run to select 65,000 petitions. (Note: the actual numbers may be different due to upto 6800 visas reserved for petitioners from Chile and Singapore)
- USCIS then identifies H-1B master’s cap-eligible petitions from the pool of all petitions 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 petitions from the master’s pool.
- USCIS then sends letters to individuals who are selected. The next steps will then be taken to proceed with processing from adjudicating service centers.
- Those petitions not selected in either the regular or masters quota will be sent back to the lawyer’s office or employers (with the fee). In the event that there were duplicate filings made, no fee will be given back.
- Selected petitioners will receive their tracking number to stay up-to-date on H-1B processing times.
H-1B Master’s Cap Predictions
Based on last year’s H-1B season, our prediction is that the cap will be filled within the first five days after opening. Since these are just H-1B master’s cap predictions, they are subject to change. Our prediction is merely a theory based on previous years’ data.
However, these rules concerning the H-1B pre-registration and the master’s cap order reversal are not idle speculations. Unless something halts progress, these are going into effect, the only question is whether it will be this filing season or next. Keep this in mind as you consider filing for the master’s cap and speak with your immigration attorney to learn more about the registration process.
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 petitioner 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, not necessarily the April 2nd date.
Benefits of the H-1B master’s degree exemption:
- No numerical limit annually
- No established filing dates
- No set beginning dates for employment
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
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 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 petition would be submitted to the annual 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, is not a means to improve your chances in the 2020 master’s degree exemption. It also does not increase the probability that your petition will be approved if it 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 H-1B petition has been entered into the 2020 master’s degree exemption and has been selected and processed, 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 petition 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
- 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 petition 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?
If the USCIS is able to get the new registration system online before the start of the 2020 H-1B season, then yes, all employers who are 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. UPDATE: The USCIS announced on 01/30/2019 that the new system will not be ready for the 2019-20 cap season.
Do I have to file a petition in the lottery this year?
Since the registration system won’t be online for this season, all petitioners – including Masters cap eligible – will have to file petitions. Those who were not selected will need to go through the process of having their fees and packet returned.
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 appraised 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 petition will be entered with all of the other petitions into the regular cap first. This means that some master’s petitions will be selected in the regular cap without ever having been entered into the master’s cap. All unselected master’s petitions will be entered into the master’s lottery, which will have a smaller amount of competition due to the fact that some master’s petitions 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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