H-1B Cap

H-1B Cap

It’s no secret, the H-1B visa is one of the most popular visas available. When you look at the relatively simple eligibility requirements, the long duration of stay, and the visa’s portability, it’s easy to see why this is the case. However, one of the major impediments to obtaining this visa is the H-1B cap. In this article, we will discuss why the H-1B has an annual cap, how it works, and what you should do if you are selected.

The Timeline of the H-1B Cap

The H-1B cap is a numerical limit placed on the amount of foreign workers authorized to work in the United States annually under H-1B status. The H-1B cap was created with the Immigration Act of 1990. The act was meant to allow the employment of non-immigrant visa participants by a U.S employer. The cap initiated on October 1, 1991 and had first reached its maximum of 65,000 in 1997.

In October of 1998, the American Competitiveness and Workforce Improvement Act (AC-21) sought to increase the cap in order to meet U.S. hiring needs. The act was approved and had temporary increased the amount of available H-1B visas from 65,000 to 115,000.

Though the quota was further pushed to 195,000 by the 21st Century Act in 2000 to accompany an even greater demand for workers. However this number did not remain at 195,000, in 2004 the H-1B quota was reorganized back to 65,000 visas available.

The H-1B Visa

In 2004 the cap was reached less than five months after opening date. Ever since then the cap has reached maximum within months after opening. Currently, the H-1B Cap dedicates 6,800 of the 65,000 H-1B1 visas for citizens of Chile and Singapore. This exception exists because Chile and Singapore are listed under the free trade agreement.

Any unused H-1B visas from the Chile and Singapore category are added to the next fiscal year. These H-1B visas are distributed in the first 45 days of the next fiscal year which actually allows for the USCIS to grant more than 65,000 H-1Bs.

The Master’s Cap

Additionally, anyone who has a master’s degree or higher (advanced degree) in their field will have their petition entered into the master’s cap. This is an addition to the cap of 20,000 slots (essentially bringing the total cap to 85,000 available visas). Petitions will be chosen from among all other petitions for those with advanced degrees.

Any that are not chosen will be re-entered into the regular cap of 65,000 which takes place afterward. Essentially, this means that your petition will have two chances of being selected. This is the only way that you can increase your odds of selection in the H-1B cap.

The three main requirements for the master’s section of the H-1B cap are:

  • You must have received your master’s degree from a U.S. institution
  • That institution must be accredited by a nationally-recognized agency
  • The institution must be either public or non-profit

H-1B Cap

Petitions Exempt from H-1B Cap

There are a few ways to be considered H-1B cap exempt. U.S. Employer matches one of the following categories:

  • Higher Education Institution
  • A non-profit affiliated with a higher education institution
  • Non-profit research or government organization
  • Beneficiaries who will work in Guam or the Northern Mariana Islands. (Applicable until December 31, 2014).

If H-1B cap exemption has been previously granted for the beneficiary, he/she will not be subject to the cap. The following will continued to be processed with cap exemption by the USCIS:

  • Extension of stay in the United States for current H-1B holder.
  • H-1B holder has a change in terms of employment
  • H-1B holder changing employers
  • H-1B holder working jointly with a second H-1B position

Students with F-1 Visas looking to file for H-1B are able to apply for the Optional Practical Training (OPT). This enables the student to work within his/her field for 12 months. There are also two additional months of grace period following the original 12 months. The time and experience spent in the United States under OPT can assist when reapplying for the H-1B visa.

H-1B Cap Process

Your employer will need to file your H-1B petition while the cap window is open, which begins on the first business day in April of the year that you wish to work. Because the USCIS will not accept your petition earlier and the cap usually ends as soon as the the cap is filled (if the cap is filled in less than a week, then the cap will close 7 days later), you likely want to get your petition in exactly on that first business day of April.

Here is a quick rundown of the process that takes place once the H-1B cap has been reached:

  1. The USCIS monitors the H-1B filings and determines the date of when it has received enough petitions to reach the congressional cap.
  2. Once the date is determined, the H-1B petitions received by the USCIS on that date will be put through the computer to randomly select the petitions.
  3. The 20,000 petitions will be randomly selected from those that were entered into the master’s cap. Those that were not selected will be re-entered into the regular cap.
  4. The 65,000 petitions for the regular cap will be randomly selected.
  5. The H-1B petitions not selected by the computer generator will be rejected and returned with a refund of the submitted filing fees.
  6. Petitioners are able to re-submit H-1B petitions at the next available period (i.e. the next fiscal year).

Any H-1B petitions received after the determined USCIS date will be rejected, unless the petition is not subject to the H-1B quota.

In some instances, an individual may be better suited to file for an L1 visa. While there are distinct differences between the two, L1 visas share some similarities to H-1B visas.

Premium Processing

One question that is often asked is whether or not premium processing affects the H-1B cap. Premium processing is an optional service provided by the USCIS that allows most visas and green cards using the I-129 and I-140 petitions to have their processing times expedited from a six month average to just 15 calendar days.

While this may seem useful on the outset, there are several reasons why premium processing may not be as advantageous as you may initially think:

  1. Premium processing does not increase your chances of being selected for the H-1B cap.
  2. Premium processing does not increase your chances of being approved if you are selected for the H-1B cap.
  3. The H-1B has strict dates to adhere to during the process. You must file your petition in the first week of April and you cannot begin working until the first business day in October of that year, which ends up being a full six months later. Even if your petition is processed in 15 days, you will still need to wait those six months.

H-1B cap premium processing can be helpful if you have been issued a Request for Evidence (RFE) and have a narrow window in which to re-submit your petition. Speak with your immigration attorney to learn if premium processing is worth the money that you would invest.

If the USCIS fails to process your petition in 15 calendar days after you have elected to use premium processing, you should be issued a refund of your premium processing fee and your petition should be processed normally.

Also, there have been several times in the past in which the premium processing service has been suspended for the H-1B visa so that those without it can be processed. Keep an eye on the USCIS website for the latest news.

What Next?

If your petition is selected, it will be processed by the USCIS. Keep in mind that having your petition chosen for the H-1B cap does not automatically guarantee that it will be approved. It will first go through a preliminary process to determine if your petition has the required evidence and if all of the information is accurate, consistent, and complete.

If it fails this test, it will likely be rejected and sent back to you without a refund. Fortunately, if this is the case, you might be able to simply fix the error or include the required evidence and refile the petition under certain circumstances. You may, however, need to file in the following year.

If your petition lacks evidence, you might be issued an RFE. In that case, you need to bring this to your immigration attorney so that a proper response can be sent in the given time frame.

If your petition makes it through the first stage and goes onto the second, it will be analyzed by an immigration officer to determine if you and your employer meet all the requirements for the H-1B visa. If it fails this stage, it may be denied, which means that you will either need to appeal the decision or file a legal motion, neither of which should be done without the help of an experienced attorney.

However, if your petition passes this second stage, it should be approved and you will be able to start work as an H-1B employee on October 1st of the year that you applied. If you are outside the U.S. when your petition is approved, you may need to go through a consular interview. Speak with your immigration attorney to see if you require a consular interview.

How Our Immigration Lawyers Can Help:

  • Our immigration attorneys are experienced in determining if your employer or beneficiary qualifies for H-1B cap exemption.
  • Our H-1B lawyers are capable of strategizing the best solutions for your individual case.
  • If you have complicated situations and are concerned about meeting the H-1B deadline, please contact our immigration lawyers for professional advice and assistance.

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