With the H-1B visa 2018-2019 season in full swing, foreign workers and employers are in the midst of preparing their petitions for submission on or after April 2, 2018. An additional 20,000 spots are made available each H-1B season for the H-1B visa master’s degree exemption to accommodate foreign nationals who hold advanced degrees. In order to receive approval for this exemption, however, specialty workers must adhere to the strict requirements–otherwise, they risk their petition being denied.
IMPORTANT UPDATE: Premium processing has been suspended for all cap-subject petitions for the 2019 fiscal year. The suspension will take place April 2, 2018 and continue until September 10, 2018. To read more about this suspension and how it affects your case, read our premium processing suspension update.
H-1B Visas Annual Quota Background
H-1B visas are reserved for foreign professions with skills in specialty occupations. Based on the quota determined by USCIS, the regular H-1B cap limit allows for 65,000 petitions to be selected in the lottery process. An additional 20,000 are allotted for specialty workers who possess U.S. Master’s degrees (or a higher level of education) from an eligible and accredited institution.
On the first business day in April (for the 2018 season, that date is April 2, 2018), the USCIS will open the cap window, allowing petitioners to submit their I-129s. Once that cap of 85,000 is reached, the window will close within the following week. Then the USCIS will have a computer randomly select the 20,000 petitions for the 2019 master’s cap. Those petitions for people with master’s degrees that are not chosen in the master’s cap will be re-entered into the regular cap of 65,000, essentially giving them a second chance of being selected.
To get a better understanding of the H-1B Master’s Exemption for 2018-2019, take a look at this intro video:
What Type of Institution is 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 H1B 2018-2019 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.
H-1B Master’s Cap Lottery–How Does it Work?
The masters cap lottery follows the process outlined below.
- USCIS first identifies H-1B master’s cap-eligible petition from the pool of all petitions received. If there are more than 20,000 master’s cap-eligible applications, then USCIS runs a random computer-generated lottery to select 20,000 petitions from the master’s pool.
- The petitions in the H-1B master’s quota that did NOT get selected are placed in the pool of regular petitions.
- If the regular quota H-1B pool exceeds 65,000 then a random computer lottery is run again to select 65,000 petitions. (Note: the actual numbers may be different due to the visas reserved for petitioners from Chile and Singapore)
- 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.
There have been movements in the U.S. political system that aim to eliminate the master’s cap. While they have yet to be written into law, it may benefit you to keep a close eye on immigration news to make sure that the master’s cap is still available.
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 2019 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 H1B Masters 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 2019 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 2018 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
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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