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 2020-2021 H-1B masters quota and how you can improve your chances of selection.
H-1B 2021 Quota Background and Registration System
USCIS establishes the quota for the H-1B 2020-2021 season. As it stands, the regular H-1B cap limit is 65,000 registrations while the U.S. master’s quota cap allows an additional 20,000. So the total H-1B master’s quota is 20,000 registrations.
However, this year presents several new changes to the way that the H-1B lottery is conducted.
The first major change is one that is brand new this year. In the past, sponsors would file I-129 petitions in order to enter their beneficiaries into the H-1B lottery. The USCIS would then choose the winners from the petitions and send back the petitions and fees that were not selected to their respective sponsors. This is no longer the process.
Instead, the USCIS has created an online registration system. Sponsors will need to create an account in the system before submitting one registration per beneficiary in order to enter them into the lottery. These registrations will replace petitions for lottery entry (though a petition will still be needed if the registration is selected in the lottery).
The registration window will open on March 1st and continue until March 20th. All registrations submitted outside of this window will not be eligible for selection. After the window closes, the lottery will be conducted and the registrations will be chosen. Those registrations that are selected will allow their sponsors to file I-129 petitions.
Also, last year saw the start of the new ordering for the master’s cap. Rather than the old way, which had the master’s cap conducted first and the regular cap following it, this reordering has the regular cap being conducted first.
This was done to increase the chances that master’s degree holders have of being selected in the lottery. In the old system, with the master’s cap being conducted first, applicants would find themselves in competition with all of the eligible candidates in the master’s cap. Then, all those that were not selected would be entered into the regular cap afterward to compete against hundreds of thousands of applicants.
Now, the regular cap is conducted first, which means that some master’s registrations will be inevitably selected. Then all unselected master’s registrations will be entered into the master’s cap. Because some of the registrations have already been chosen in the regular cap, the master’s pool will be smaller than it would have been had the master’s cap been conducted first.
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 2021 Requirements
The process and requirements for the master’s cap lottery are outlined below:
- The lottery for the master’s cap will be conducted first, randomly selecting 20,000 registrations from the master’s pool. Any registrations that are not selected will be entered into the regular pool.
- If over 65,000 registrations are submitted for the regular pool, then the regular lottery is conducted to select them at random.
- Those who are selected will see that their registration’s status has changed to “Selected”.
- Registrations that are not selected in the H-1B master’s quota 2021 or regular pool will be left as “Submitted” until the end of the fiscal year. Be sure that no duplicate filings are made as that would disqualify all registrations you make for a particular beneficiary and the registration fee will be given back.
Two Bites at the Apple
It is important to reiterate the advantage given to registrations for those with master’s degrees. Submitting your registration under the master’s degree exemption gives you the chance to be selected in the first lottery. If your registration is not selected, then your registration 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 registration 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 2021? – Other Options
If you don’t qualify based on the master’s quota requirements for 2020-2021, 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 Registration Was Selected! Now What?
If your registration is selected, then the next step will be to file an I-129 petition with the USCIS along with any and all supporting documents and H-1B fees. Remember that a petition is only filed if a valid registration has been selected. If your registration still has a status of “submitted”, any petition filed for this case will be rejected.
Once you have filed the petition, the next step is to wait for the USCIS to process it and render a verdict. This can take as little as a few weeks or as long as six months depending on the caseload of the service center that is processing your petition. Premium processing can help here, but even if your petition is approved in 15 calendar days, the earliest that the beneficiary can start working is October 1st. Speak with your immigration attorney to see if premium processing would be beneficial for your situation.
If the petition is approved, then the beneficiary will be able to start working at the beginning of the next fiscal year, which is October 1st. No other action will be needed. However, if the USCIS sends a Request for Evidence (RFE), then the sponsor will need to respond correctly and in a timely fashion.
What If the Petitions for Selected Registrations 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.
There are four possible statuses that your registration can have in the USCIS online portal. They are as follows:
- Selected: If you see this status, that means that your registration was chosen in the lottery and you can go on to file a petition on April 1st.
- Denied: This means that your registration was disqualified from the lottery. This will likely be due to multiple filings for the same beneficiary.
- Not Selected: This means that your registration was not selected and will not be used in the 2021 H-1B cap. You will only see this status if your registration has not been chosen by October 1st.
- Submitted: This simply means that the USCIS has received your registration. However, if the window has come and gone and your registration still says “Submitted”, don’t panic. This means that your registration was not selected in the initial cap, but is still eligible to be selected later on if the USCIS needs to fill the cap.
The USCIS understands that there will be some sponsors whose registrations are chosen, but whose petitions are rejected or denied. When that happens, it will choose a registration to replace it. If your registration says “Submitted” after the window is closed, that replacement registration could be yours.
Is There a Formula for Cap Calculation?
The USCIS has disclosed the rough formula that they use to determine the cap amounts:
2021 Cap = 2021 regular cap (65,000) – 2021 H-1B1 Singapore-Chile exemption cap (6,800) + extra registrations from the 2019 H-1B1 cap + extra 2021 registrations in case some are denied or withdrawn
Are the Filing Fees the Same as Last Year?
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 2021 H-1B master’s quota, check with your immigration attorney.
H-1B Masters Quota 2020-2021 FAQs
Below are some common H-1B masters quota 2021 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 allows a certain number of individuals to receive H-1B visas each year.
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 the H-1B cap and must have a registration entered into the lottery that is selected. 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 2021. 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 2021. 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 2021 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.