Foreign professionals who possess advanced educational degrees have the benefit of being able to file under the advanced degree exemption, otherwise known as the “Master’s cap” during the H-1B visa season. Due to the highly competitive nature of the H-1B visa process, this exemption is a great advantage that some foreign professionals may not be aware of. In this post, we’ll explore the 2018-2019 H-1B Masters Quota and how you can stack your chances of selection.
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 2018 Quota Background
USCIS establishes the quota for the H-1B 2018-2019 season. As it stands, the regular H-1B cap limit is 65,000 petitions while U.S. Master’s Quota Cap allows an additional 20,000. It’s important to note, however, that as the applicant your advanced degree must be from an eligible and accredited institution.
How Does An Institution Qualify?
To be eligible for the Master’s Degree Cap, the United States institution should be public or non-profit in nature. If you received your degree from an unaccredited or for-profit institution, your petition will be denied. Unfortunately, if you did not meet the requirements and you receive a denial as a result, you will also not be counted towards the regular cap.
It’s always advised to consult with an H-1B visa lawyer if you don’t think you’ll meet the eligibility requirements. Again, in order to meet the H-1B master’s requirement, the institution must:
- Be U.S. based
- A public or non-profit institution
- Accredited by a nationally recognized agency
Some examples of accrediting organizations that are formally recognized include the Accrediting Commission of Career Schools and Colleges, Accrediting Council for Continuing Education and Training, Accrediting Council for Independent Colleges and Schools.
Confirm that Your Institution Still Qualifies
An institution’s accreditation status has the potential to change over time. This is why it is always best to be up-to-date on your situation. Some institutions may have been accredited in the past but in time, violations may have caused their accreditation to be revoked.
For instance, Mountain State University used to be an accredited institution. However, due to accrued violations, it was revoked in 2012. Students from this institution will not be able to file under the master’s cap but would still be eligible for the regular quota.
The process for the Master’s Cap lottery is outlined below:
H-1B Masters Quota 2018 Requirements
The process and requirements for the Master’s Cap lottery is outlined below:
- The lottery for the master’s cap will be conducted first, randomly selecting 20,000 petitions from the master’s pool. Any petitions that are not selected will be entered into the regular pool.
- If over 65,000 petitions are submitted for the regular pool, then the regular lottery is conducted to select them at random.
- Those who are selected will receive a letter from the USCIS. Each individual adjudicating service center will then process the petitions from there.
- Petitions which are not selected in the H-1B Masters quota 2019 or regular pool will be sent back to the designated lawyer or employer’s office with the fee. Be sure that no duplicate filings are made because no fee will be given back.
- The last step is selected petitioners will receive their tracking numbers to stay current on the status of their case.
Two Bites at the Apple
It is important to reiterate the advantage given to petitioners with master’s degrees. Submitting your petition under the masters degree exemption gives you the chance to be selected in the first lottery. If your petition is not selected, then your petition will be re-entered into the regular lottery for a second selection.
This means that, as a master’s degree holder, you will essentially have “two bites at the apple” or two separate chances to be chosen in the H-1B lottery. However, if your petition is rejected for reasons such as no accreditation or having a degree from a foreign institution, you will not be able to compete in the regular cap.
Because of this, it is advisable to work alongside your immigration attorney to avoid damaging your chances for selection.
Don’t Qualify For H-1B Masters Quota 2018? – Other Options
If you don’t qualify based on the master’s quota requirements for 2018-2019, the good news is that you have other exemption options available:
- If you have previously been counted under the cap, you are cap exempt.
- If you are considered a citizen of Singapore or Chile, there are 6,800 spots set aside as part of the free trade agreement.
- If your employer is H-1B cap-exempt.
- Last year, some of the top cap exempt jobs included positions such as researcher, occupational therapist, research assistant, analyst, biologist and nurse. Generally, a position at a non-profit organization, institute of higher education, or governmental research center qualifies as cap-exempt. Again, you will need to ensure that the employer is H-1B cap exempt before taking action.
What If Selected Petitions Are Denied?
If there are 85,000 slots available in the lottery and that many are chosen, some will inevitably be denied or withdrawn. When that happens, the USCIS has developed a way to fill those now-vacant spots.
Each year the USCIS selects a certain number of petitions over the annual cap in anticipation of denials and withdrawals. That means that if your petition was not initially selected, it could possibly take the place of a rejected petition in the future.
Is There a Formula for Cap Calculation?
The USCIS has disclosed the rough formula that they use to determine the cap amounts:
2019 Cap = 2019 regular cap (65,000) – 2019 H-1B1 Singapore-Chile exemption cap (6,800) + extra petitions from the 2018 H-1B1 cap + extra 2019 petitions in case some are denied or withdrawn
Are the Filing Fees the Same as Last Year?
In the past, the basic filing fee for the I-129 petition has been $325. However, as of December 23rd, that fee has gone up to $460.
The USCIS also announced that after December 18, 2015, certain H-1B petitioners must include a $4,000 fee according to Public Law 114-113.
These fees need to be considered alongside the ACWIA Education and Training fee as well as the Anti-Fraud fee. To gain a better understanding of what the fees will look like in the 2018 H-1B master’s quota, check with your immigration attorney.
Will There be a H-1B Master’s Cap available Next Year?
While the master’s cap gives advanced degree holders an edge on the competition, there are those who are working to dismantle this advantage. A California congressman has recently introduced a bill that would potentially eliminate the masters degree exemption.
While this would decrease the amount of people who could abuse this system, it would also hurt many petitioner’s chances of being selected for the lottery. For those that have worked hard and invested substantial time and money into their advanced degree, this could be very detrimental.
However, this bill has come under heavy criticism and many experts believe that this bill has little chance of being enacted.
H-1B Masters Quota 2018-2019 FAQs
Below are some common H-1B Masters Quota 2019 questions:
Q. WHAT IS THE PURPOSE OF HAVING THE LOTTERY?
The lottery exists to limit the number of jobs in the U.S. that are outsourced to foreign nationals. Because the demand for this visa class is so high, the USCIS only adjudicates the lottery winners. This prevents them from having to process hundreds of thousands of petitions.
Q. HOW DO YOU DEFINE CAP-EXEMPT PETITIONS?
Cap-exempt petitions can be filed to adjust the terms of employment for a current H-1B worker, to extend the amount of time as an H-1B worker, allow the H-1B worker to change employers, etc. These petitions can also be for cap-exempt employers as stated above.
Q. WHAT IF THERE IS A MISTAKE IN MY APPLICATION?
If there is a mistake in your H-1B cap application, you most likely will not get a second chance to apply. For that reason, it is incredibly important to have a qualified immigration lawyer thoroughly review your petition.
Q. Can I self-petition for my H-1B if I have an advanced degree?
Unfortunately, it is impossible to self-petition for an H-1B in 2019. This is because you must have an employee-employer relationship between you and your sponsor. If you are the sole proprietor of your business, you will be fulfilling both roles and will be unable to petition for an H-1B. To start a business on an H-1B, you will need to set up a third party that can act as your employer.
Q. What is the “employee-employer” relationship?
To prove that you and your sponsor maintain an “employee-employer” relationship, you need to show that your sponsor has complete control over your wages, job duties, and employment status.
Q.What do I do when I’ve received an RFE?
Getting a Request for Evidence (RFE) is like getting a second chance. Rather than deny or reject your petition outright based on lack of evidence, the USCIS is giving you the opportunity to provide documents to support your case. Basically, there are three types of responses to an RFE:
- Full response – you submit all of the evidence requested in the RFE
- Partial response – you submit some of the requested evidence, either because you don’t have the evidence or you choose not to share it.
- Application withdrawal
Submitting some evidence (like educational documents, bank statements, or copies of certificates) is usually preferable to submitting nothing. If the USCIS does not receive a response within the allotted window, it will likely be denied.
Q. Is there a difference between petition denial and rejection?
Yes, the H-1B is evaluated in a two-pronged system in 2019. The first prong is when the evaluating officer assesses whether the information on your petition is accurate, complete, consistent, and supported with enough evidence (e.g. copy of master’s degree, work experience, etc.). He or she will also check to see if the correct fees have been paid. If your petition fails this stage, then it will likely be rejected. The best thing to do in this situation may be simply to correct the mistake and refile next season. If you are filing for an H-1B extension or transfer, you can file whenever you would like.
However, if your petition makes it past the first prong and onto the second, it will be evaluated on its merit. This means that the evaluating officer will determine if, based on the evidence and information on your petition, you and your employer are qualified for the H-1B visa. If your petition fails this stage, it will probably be denied.
Q. What can I do if my petition is denied?
If your H-1B visa is denied, you will likely not have the option to appeal the decision, as denoted by your denial letter. You may, however, be able to file one of two motions:
Motion to Reopen: This is used when you have obtained new evidence that would drastically change the decision made for your H-1B petition if the case were to be reopened.
Motion to Reconsider: This is used if you and your attorney believe that the evaluating officer was wrong in his or her decision to deny your petition. You will likely need to present an argument that shows how you are eligible for the H-1B according to immigration law.
In either case, a legal motion should not be pursued without the help of an immigration attorney who is experienced with motions and appeals.
Q. Can I use premium processing?
Yes. It is possible to use premium processing to expedite your H-1B petition’s processing time to 15 calendar days by filing an I-907 form. However, there are a few things to note about this service:
- It does not increase your chances of being selected for the 2019 H-1B master’s quota
- It does not increase your chances of having your petition approved by the USCIS
- It does not allow you to work any sooner than October 1st of the year that you petitioned
- The USCIS can revoke the premium processing service at any time
Because the H-1B is limited to the dates given (April 1st and October 1st), premium processing may not be the best option for your case. Even if your petition is approved in 15 calendar days, you will still need to wait six months to start working on October 1st. That being said, premium processing can sometimes be helpful if you have received an RFE and have a narrow window to respond.
Additionally, last season, the USCIS chose to suspend premium processing so that those petitions without that service would be processed. There is no indication of whether this will happen again for the 2018-2019 H-1B season.
As a side note, if the USCIS does not process your petition in 15 days after you have filed the I-907 and paid the fee, that fee will be refunded to you and your petition will be processed normally.
Q. Will having a master’s degree help me with my green card petition?
While having a master’s degree does not directly give you an advantage when filing for a green card, it may set you up to be qualified for one of the better green cards. The EB-2 visa usually has short priority date waiting times, so it’s highly sought-after. Fortunately for you, one way to get an EB-2 is to have an advanced degree. However, this is not enough. You must also have a job that requires your degree. Your immigration attorney can better assess your eligibility for this green card based on your master’s degree.
H-1B Filing Mistakes to Avoid
- Insufficient Job Description: A number of factors can contribute to a filing error and this includes a deficient job description. The best way to avoid this mistake is to carefully review the job description with your lawyer to ensure that it qualifies as a specialty occupation.
- Delays with the LCA Certification: In some scenarios, the iCert system may not recognize an employer or company’s FEIN. If this is the case, then there needs to be pre-verification before an LCA can be successfully submitted. The best way to avoid this is to be prepared ahead of time and submit your LCA early so any corrective measures can be made.
- Not determining employee’s prior status: If the foreign national previously had H-1B status through an exempt employer, they may not have been counted against the cap. Someone transferring from a cap-exempt employer to a cap-subject employer must have a new cap-subject H-1B petition filed on April 1st. The best way to avoid this mistake is to ensure whether the foreign national has or has not been counted against the cap previously.
- Choosing the wrong start date on the I-129: Be sure to double check that the correct start date is listed on the I-129 as well as wages, and other details.
- Filing with the wrong service center: Any petition that does not include the required fees will be rejected. Likewise, those sent to the wrong USCIS Service Center may not be properly processed. It’s important to include individual checks for each filing fee and make sure that they are all signed.
How Our Immigration Lawyers Can Help
Immigration law is incredibly complex. From filing your petition to determining if your institution is accredited, there are dozens of mistakes that are very easy to make for the inexperienced. That is why hiring an immigration attorney can ensure that you get it right the first time and that all obstacles are handled by a professionals, saving both you and your employer time and money.
Our H-1B visa lawyers have helped hundreds of clients receive approvals in a variety of complex H-1B cases, including helping them through difficult Requests for Evidence. Fill out our consultation form to go over the details of your case and any documentation we may need. You may even qualify for a free consultation.