h1b masters cap

As we enter the H-1B 2021-2022 season, U.S. employers and prospective foreign employees 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 H-1B master’s cap degree exemption, a separate lottery for those who possess advanced degrees from eligible institutions. It may sound simple, but there are precise 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: USCIS closed H-1B Lottery registration on March 25 and has already started notifying employers or their attorneys whether or not they were selected. We have received several selections from the H1B registration we had submitted. USCIS is expected to complete sending notifications by March 31. Those selected will have until June 30 to submit their petition with the necessary paperwork. Submission requirements are included in the H-1B cap Registration Selection notice PDF received by the selected petitioners or their attorneys. Although USCIS has not released the final number, the number of registrations for the H-1B lottery is expected to have exceeded the 85,000 cap amount. If you were not selected in the FY 2021-2022 H-1B lottery, learn about your other options in this post.

H-1B Master’s Cap 2021–2022

The H-1B visa is a nonimmigrant work visa designated for professionals who work in jobs that are considered specialty occupations. Because the requirements are relatively lenient compared to other work visas for skilled workers, there are usually many 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 comprises 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 candidates with 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 cap.

The advanced degree exemption’s main benefit 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 H-1B master’s cap for a second chance at selection.

h1b master's cap

 

H1B Master’s Quota Lottery and Registrations for 2021-22 Season

IMPORTANT: President Biden Issued an Executive Order on January 28, 2021 which revoked the “Buy American and Hire American” Executive Order passed by Trump. It’s unclear at this point in time if the order of the lottery will be affected by this change. We will keep you posted with updates as they are made available

H-B petitioners need to register their alien beneficiaries before the opening of the lottery window. 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.

According to USCIS, this method expedites the process because it avoids them having to sift through tens of thousands of petitions every year, and it makes the filing process less expensive for employers.

All registrations—including master’s quota eligible registrations—are 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 H-1B master’s cap afterward. According to USCIS, ordering the lottery this way increases the chances of selecting H-1B beneficiaries with a master’s degree or higher by up to 16%.

After the lottery selection, employers will be notified if their registration was chosen, and the next filing steps will take place. The employer will need to file the complete H-1B petition, and the entire package of documents will be sent to the designated service center where it will then be rejected or approved. Each petition is given a USCIS case number, which is a tracking identifier.

 

H1B Visa 2021 Timeline

H1B Advanced Degree Exemption Eligibility

For you to qualify for the H-1B master’s degree exemption, there are two main requirements:

  1. You must have earned a master’s degree from an institution that is accredited by a nationally recognized agency.
  2. The U.S. institution should also be public or non-profit in nature.

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

You can find a full list of accreditation programs in the United States on the Department of Education’s website.

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 USCIS denied your petition, 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 before filing. Failure to do so only causes delays and additional frustration.

advanced degree exemption

Ineligible H1B Masters Cap Institutions

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, it is a for-profit institution and therefore not eligible under the criteria.

H1B Masters Cap Lottery–How Does it Work?

Under the current system, the H-1B master’s cap lottery follows the process outlined below.

  1. 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 6,800 visas reserved for petitioners from Chile and Singapore)
  2. 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, USCIS runs a second computer-generated lottery to select 20,000 registrations from the master’s pool.
  3. 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.
  4. Those registrations not selected in either the regular or master’s quota will be designated as “not selected” in the online portal. USCIS will give no refund for the $10 registration fee.
  5. Selected petitioners will receive their USCIS case 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 in the USCIS portal and submitting one registration for each beneficiary. Each sponsor can only submit one petition per beneficiary. However, keep in mind that a single sponsor can submit registrations for multiple beneficiaries, and beneficiaries can have registrations submitted for them by multiple employers.

On March 9th, at 12 p.m. EST, the registration window will open, allowing sponsors to submit their registrations. This window will remain open until March 25th at 12 p.m. EST. Submitting a registration early or late in that time frame does not help or hurt 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 advanced 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 six months, 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.”

H1B Master’s Cap Denial 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:

  1. 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.
  2. Inconsistent documentation: All of the information regarding your institution must match 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 your institution’s accreditation or public or non-profit status.

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 institution’s dean 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 2021-2022 season.

If you move or otherwise change your address, you must inform the USCIS. USCIS will send the RFE 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.

An RFE can drastically delay your petition, so it is always advisable to work with your immigration attorney to ensure your institution qualifies. All of the necessary evidence is filed correctly the first time.

If you’ve been denied your H-1B visa, another option is to get a job with a cap-exempt employer.

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:

  • Motion to reopen: File this motion if you have new evidence to bring to the table that might change the evaluating officer’s mind
  • Motion to reconsider: 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.

Potential Challenges

When a sponsor registers a beneficiary, they will need to designate whether it is for the master’s cap or the regular cap. Sponsors must ensure that they take the eligibility factors we’ve discussed above into account before submitting a registration. If a sponsor submits an H-1B master’s cap registration that does not qualify, the registration will likely still go through. Still, 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, 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 their behalf by different sponsors. Also, a single sponsor can submit registrations for multiple beneficiaries.

Furthermore, the rate of denials and RFEs has skyrocketed over the past several years. With such a short window for submitting registrations and filing subsequent petitions, it is imperative to ensure 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 many entries.

Attempting to handle the H-1B process without the help of an immigration lawyer can be quite challenging. 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.

H1B Masters Cap Predictions

With the current system in place, we predict that there will be many registrations submitted. Last year, USCIS received 275,000 applications which was a significant increase from the year prior when they received 201,000. 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 master’s cap order 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 been able to seek employment through the use of Employment Authorization Documents (EAD) for the past several years.

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. The service fee for premium processing for H-1B season 2021-2022 is $2,500.

Also, expediting your petition will not change these dates because of the date constraints on the H-1B. If you are selected and approved, you will still need to wait until October 1st 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.

Once your registration has been entered into the 2021 advanced 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 2021 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 a 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.

H1B Masters Cap F.A.Q.

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 H1B master’s cap, then 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 to enter the lottery. Instead, beneficiaries must be registered, and the USCIS will select registrations. You only need to file a petition if USCIS selected your beneficiary’s registration 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 does the H1B master’s cap order 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, 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 USCIS will select some master’s registrations in the regular cap without entering the H-1B master’s cap. All unselected master’s registrations will be entered into the master’s lottery, which will have a smaller amount of competition because 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.

Where can I find an H-1B sponsor?

If you do not have an H-1B sponsor, there are databases available to find a suitable one. Disclaimer: We do not take ownership or responsibility for the information found on H-1B sponsor sites. This site allows you to filter your search by visa job title, NAICS industry, work city, and visa rank. The information on that visa sponsor database is based on LCAs and Labor Certifications. Another good place to search for qualified H-1B jobs is at U.S. academic institutions because they’re not subject to annual cap restrictions.

What is the prevailing wage?

The prevailing wage, provided by the Department of Labor under the Occupational Employment Statistics program, is the average wage for employees who perform the same (or similar) jobs. The prevailing wage is indicated on the Labor Certification Application. Most employment visas, including the H-1B visa, require by law the employer to pay their alien employees this wage as the minimum.

The Trump Administration’s Prevailing Wage Rule will not be in effect this lottery period because USCIS has decided to delay it until December 31, 2021. President Biden still needs to review it and decide if he wants to keep it. The federal courts may also decide to get rid of it altogether.

The Department is delaying the rule’s effective date until December 31, 2021, because USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H-1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season. During the delay, while USCIS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration.

Stay posted to our blog and newsletter for updates regarding new changes under the Biden Administration.

What documents/info is required for the H1B registration?

You’ll need to provide the following information/supporting documents:

  • Employer’s name
  • Employer’s FEIN (identification number)
  • Employer’s address
  • Employers contact information
  • Employer’s lawyer contact info

What are all the H-1B fees paid to USCIS?

To enter the lottery, employers only need to pay the $10 registration fee. However, should their employee’s registration be selected in the lottery, then these fees below will apply:

Fee

Amount

Responsible for Fee

Registration Fee

$10

Employer

Premium Processing (optional

$2,500

Employer or Employee

Public Law 114-113 Fee

$4000

Employer

Basic Filing Fee

$460

Employer

USCIS Anti-Fraud Fee

$500

Employer

ACWIA Education and Training Fee

$750 (less than 25 employees)  

$1500 (more than 25 employees)

Employer

Attorney Fee

Variable

Employer

What is consular processing for?

Consular processing is for H-1B petitioners who have been selected in the lottery and have an approved complete H-1B package but live outside of the United States. Note that if this is your case, you will need to make an appointment at the U.S. consulate/embassy in your home country and bring with you the paid DS-160 nonimmigrant application, receipt that you paid the $190 cost for this form, and be ready to answer any questions the consular officer may ask you. At the interview, you may be asked about your job, employer, qualifications, work history, and travel history. If you don’t know the answer to one of their questions, always be honest, and it’s perfectly okay to say, “I don’t know,” if you’re unsure.

Why was my Labor Condition Application delayed?

In the past, we’ve seen cases where the iCert visa portal didn’t recognize an employer or company’s FEIN number. Typically, this occurs if there hasn’t been a pre-verification done before completing the Labor Condition Application. It’s best to always go through a qualified immigration lawyer to ensure no unnecessary delays like this occur.

How Do I Submit a Petition?

It’s always best to go through the approved delivery method specified for your petition. Options like USPCS, FedEx, UPS, or another bonded service are generally good routes. Do not deliver your petition by hand or another unconventional way, or you risk your petition not being properly processed. Again, your lawyer can provide the best instructions for delivery methods.

What are the types of RFEs?

An RFE or request for evidence is sent by USCIS indicating that the evaluating officer needs more documents or evidence to make a clear decision. An RFE is not an immediate denial, so you still have a chance of getting an approval. It’s important to respond to the RFE promptly and within the time frame you’re given. The three types of ways to respond to a request for evidence are as follows:

  • Full response: This type of response includes all the requested evidence USCIS has asked for.
  • Partial response:  These tend to be the common responses. You submit some of the evidence USCIS has asked for but not all of it, either because you do not wish to submit it all, or you simply do not have the evidence requested.
  • No response: You can always withdraw your application.

With any RFE you receive, always thoroughly review it with your attorney to decide the best course of action. Sometimes USCIS may have doubts about your employer, the company’s relationship, and yourself, your credentials, etc. Any response you send to USCIS should support any doubts or issues they have concerning your case.

I just lost my H-1B status, now what do I do?

If you lost your H-1B job, you are granted a 60-day grace period that starts on the first day of your unemployment. You’re given this grace period so you can either find a new sponsor, switch to another visa, or get your affairs ready to leave the United States.

Can my spouse get a visa?

In 2015, the Obama administration created a rule which permitted those with H-4 visas (spouses of H-1B holders) to get employment authorization. The Biden administration has kept this rule in existence and proposed legislation to make it permanent. We will keep you updated with changes to this legislation. The only way it could be rescinded is by a law passed by Congress at this point.

What are your H1B Visa Lawyer Fees?

Our legal fees are now tiered because only some companies will file complete petitions after they are selected in the lottery. The tiers are as follows:

  • Tier One: $550 for the initial registration process, which includes all preliminary case analyses required to file the case such as SOC, duties, documents, educational check, evaluations, if necessary, FEIN, etc.
  • Tier Two: $1,900 will be due if the case is selected in the lottery for filing, which includes all form/support letter preparation plus case filing within the timeframe
  • Tier Three: $500–$1,500 will be the cost of a Request For Evidence (RFE) response, should one later be issued on the case

Please note that H-1B petitioners have the option to complete the initial registration themselves. Again, note that if the registration is completed incorrectly, the petition may later be denied. Once the petition has been confirmed as being selected in the lottery, employers may choose to retain our firm for the complete filing.  If that route is selected instead, the legal fee for preparing the H-1b filing will be $2300. This fee excludes the cost for a response to any possible RFE that may be issued on the case and any H-4 application that may be required.  The fee for an RFE response will remain between $500–$1600, depending upon the complexity of the RFE.

What other options do I have if I don’t qualify for the 2021 H1B advanced degree exemption or H-1B lottery?

If you’ve reviewed all the aforementioned criteria and find that you are not eligible for the H-1B visa for 2021-2022, you do have other options apart from the H-1B masters cap and regular lottery pool. The L-1B visa, like the H-1B, is also a nonimmigrant visa, and it allows employers who have offices both in the United States and overseas to transfer employees from their overseas offices to those in the U.S. for a period of up to five years. Another option is the J-1 visa, which is intended for government-approved programs for positions like nannies, students, counselors, doctors, etc.

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