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 2019-2020 H-1B masters quota and how you can stack your chances of selection.
- 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 master’s degree exemption. It reverses the order by which the USCIS selects H-1B petitions under the H-1B regular cap and the master’s cap (advanced degree exemption).
- The premium processing suspension ended on January 28, 2019. This means that premium processing will only be available to H-1B petitions filed for the FY 2019 cap. There is no announcement regarding premium processing for the 2020 cap so far except that the suspension will continue for all H-1B petitions except those for the 2019 season.
- 4/8 Update: The USCIS has announced that they have received enough H-1B petitions to fill the cap for 2020. The lottery will now be conducted as per the new changes, with the master’s cap being performed after the regular cap. We expect that the results will be posted within the next week, so check back here regularly to get the latest info as soon as it is released.
H-1B 2020 Quota Background
USCIS establishes the quota for the H-1B 2019-2020 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. So the total H-1B master’s quota is 20,000 petitions. 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:
CHANGES TO THE H-1B VISA LOTTERY PROCESS FY2020 AND BEYOND
On January 31, 2019, the Department of Homeland Security (DHS) published 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.L
(1) Reverses the order by which USCIS will select petitions under the H-1B cap and the advanced degree exemptions; and
(2) Adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions.
(1) REVERSAL OF THE ORDER BY WHICH THE H1B LOTTERY IS CONDUCTED
The second major change, the reversal of the order by which USCIS will select petitions under the H-1B cap and the advanced degree exemption, will take place this year, during the FY2020 H-1B cap. This change will result in USCIS counting all applicants towards the number projected as needed to reach the H-1B regular cap first. Once a sufficient number of applicants have been selected for the H-1B regular cap, USCIS would then select applicants towards the advanced degree exemption.
Per USCIS, it is anticipated that this change will result in an 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 public or an accredited private non-profit U.S. University.
As a result, beneficiaries who possess only a bachelor’s degree, or a non-U.S. master’s or higher degree would have a decreased change of being selected for the H-1B lottery.
According to USCIS Director L. Francis Cissna – “these simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better. The new registration system, once implemented, will lower overall costs for employers and increase government efficiency.”
(2) ELECTRONIC REGISTRATION REQUIREMENT
DHS has suspended the electronic registration requirement for 2019-2020 H-1B cap season. The suspension of the electronic registration requirement for this year’s H-1B cap filing season is in order to allow USCIS time to complete the necessary user testing of the registration system and to ensure the system and process are fully functional before they are implemented.
As the electronic registration requirement has been suspended for this year’s H-1B cap, all H-1B cap-subject petitions filed as part of the FY2020 H-1B cap will have to be filed using the same process as in prior years. H1B petitioners will need to submit a complete H-1B petition to USCIS.
H-1B Masters Quota 2020 Process
The process for the master’s cap lottery is outlined below:
- If more than 65,000 petitions are submitted for the regular pool, then the regular lottery is conducted to select them at random. Starting H-1B 2019-2020 cap season, all candidates, including those eligible for H1B masters degree quota, will be entered in the regular lottery first.
- Any masters cap eligible petitions that are not selected will be entered into the Masters (advanced degree) pool. The lottery for the master’s cap will be conducted second, randomly selecting 20,000 petitions from the master’s pool.
- 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 2020 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 two chances to be selected in the H1B lottery. If your petition is not selected in the regular lottery, then your petition will be re-entered into the H1B masters cap lottery for a second opportunity.
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 2020? – Other Options
If you don’t qualify based on the master’s quota requirements for 2019-2020, 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.
My Master’s Cap Petition Was Selected! Now What?
First of all, congratulations on having your petition selected. However, this is not the end of the line. Once selected, your petition will go on to be processed. You will still need to have your petition be approved before you will be able to receive your H-1B visa. It would be terrible if your petition was selected in the lottery and then denied/rejected during processing. Make sure that your documents are in order and your petition is completely and accurately filled out to avoid this situation.
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:
2020 Cap = 2020 regular cap (65,000) – 2020 H-1B1 Singapore-Chile exemption cap (6,800) + extra petitions from the 2019 H-1B1 cap + extra 2020 petitions in case some are denied or withdrawn
Are the Filing Fees the Same as Last Year?
Yes, the filing fees are the same. The basic filing fee for the I-129 petition is $460.
The Public Law 114-113 fee remains at $4,000 for employers that have more than 50 employees with over half under H-1B or L-1 status.
These fees need to be considered alongside the ACWIA Education and Training fee as well as the Anti-Fraud fee of $500. To gain a better understanding of what the fees will look like in the 2020 H-1B master’s quota, check with your immigration attorney.
H-1B Masters Quota 2019-2020 FAQs
Below are some common H-1B masters quota 2020 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. A cap-exempt employer is either an institute of higher education, a nonprofit organization associated with an institute of higher education, or a governmental research facility.
Keep in mind that even though this is often called the “master’s degree exemption”, it is not a cap-exempt petition. This excuses you from the regular cap and enters you into the master’s cap (with the opportunity to enter the regular cap if you are not selected in the master’s cap). However, you are still subject to an H-1B cap and can only file during the annual window at the beginning of April. You will also not be able to work until October 1st of that same year if your petition is selected and approved.
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 2020. 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. Proving this is essential to being able to start a business under H-1B 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 2020. 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 2020 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 2020-2021 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.
Additionally, President Trump has recently mentioned the following:
“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”
While this seems to counteract the administration’s recent actions, it does fall in line with the overall sentiment to make the H-1B more geared toward highly-skilled (i.e. high earning) aliens. An executive order could cause this “citizenship path” to become true. However, as it stands, there is no direct route to citizenship from H-1B status. You must first get a green card and hold it for at least five years.
Q. Does my H-4 spouse benefit from my advanced degree?
There is no direct immigration benefit for any H-4 spouses due to an H-1B beneficiary going through the master’s cap outside of giving the principle H-1B applicant two bites at the apple. Additionally, the current administration is working to implement rules to make it impossible for H-4 visa holders to apply for employment authorization. Speak with your immigration attorney to see if the H-4 will be the best route for you.
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.