H-1B Cap Issues

H-1B Cap: The Annual Numerical Limit

The “H-1B cap” is the annual numerical limit on new H-1B petitions that may be granted within a fiscal year, as set forth in the statute at Section 214(g) of the Immigration & Nationality Act. The unrestricted “regular cap” is 65,000 per fiscal year, and the additional “Master’s cap” reserved for graduates of accredited U.S. non-profit institutions of higher education is another 20,000 per fiscal year.

  • FY 2016: USCIS announced on Tuesday, April 7, 2015 that they had received more than enough petitions to meet both the regular cap of 65,000 and Master’s cap of an additional 20,000. A total of over 233,000 were received.
  • FY 2015: USCIS announced at lunchtime on Monday, April 7, 2014 that both the regular H-1B cap and the U.S. Master’s cap were met.
  • FY 2014: USCIS announced that the FY 2014 H-1B cap and Master’s cap were met on April 5, 2013.
  • FY 2013: USCIS announced that the U.S. Master’s degree cap of 20,000 was reached on June 7, 2012, and the regular H-1B cap of 65,000 was reached on June 11, 2012.
  • FY 2012: The Master’s cap was reached on October 28, 2011 and the regular H-1B cap was reached on November 23, 2011.
  • FY 2011: The H-1B cap was reached on January 26, 2011, including both the regular and Master’s degree cap.
  • FY 2010: H-1B cap numbers were used much more slowly than in the preceding 4 years, due to vastly reduced hiring across several industries because of the market crash in 2008. The H-1B cap was reached on December 24, 2009.

The H-1B Cap Filing Rules

A regulation was published on March 24, 2008, to make the filing process fairer.

  1. The initial filing window is now five business days, beginning on April 1. All petitions received at USCIS Service Centers during this period will be entered in the random selection lottery. Cases selected will be receipted in & filing fee checks will be cashed. Cases not selected in this lottery will be rejected and returned to petitioners, with all supporting documents and USCIS filing fees.
  2. Duplicate filings are prohibited. If any employer files more than one H-1B petition for the same worker, even if they are for different jobs, or one is Master’s cap and one under the regular cap, then both petitions will be denied, not rejected.
  3. Initial receipts will be pre-screened to identify which cases are allocated to the Master’s cap and which cases are allocated to the regular cap, and to flag any duplicates.
  4. Cap-exempt cases are also affected: strong documentation must be presented with the initial filing to support the claim that a petitioner or job is H-1B cap-exempt, as cases making incorrect claims to cap-exemption will be denied, not rejected. Cases that are cap-exempt due to the nature of the employer now require centralized filing at the California Service Center, regardless of where the job is located.

The TARP Funds Disclosure Rule

In the wake of the bailout packages of 2008-09 for financial institutions, Congress has attached certain restrictions on H-1B filing: In a rule published on 3/20/2009, USCIS posted a Q&A, an additional processing worksheet, and a revision to Form I-129, specifically to the H-1B Data Collection Form, which adds a new question at Part A, question 1.d., which asks if the petitioner has received any TARP funds or funds under various lending facilities authorized by Section 13 of the Federal Reserve Act.

Are there any other categories that add more visa numbers to the H-1B cap?

No, not for the general applicant pool. Within the existing cap, 6,800 visa numbers are set aside for use by H-1B1 nationals of Chile and Singapore, pursuant to Free Trade agreements with the United States. This reduces the number in the general pool to 58,200. Unused H-1B1 visa numbers allocated to Chile and Singapore are added back to the general pool of visa numbers for the next fiscal year, but they must be used within the first 45 days of the next fiscal year. Because this Chile/Singapore cap is never used up, H-1B1 visas remain available year-round.

Example: Because the H-1B1 Chile/Singapore Free Trade set-aside was new and unfamiliar, 6,100 of these visas were unused in FY’06, so these numbers were added back to the general pool for the next year, bringing the total number of general H-1B visas available at the beginning of FY’07 up to 64,300.

What about the Master’s Cap?

There is a separate pool of 20,000 additional H-1B visa numbers per fiscal year that is available only to candidates who have earned a Master’s or higher graduate degree from a U.S. institution of higher education. This quota does not include foreign graduate degrees, and it does not include professional post-graduate certificate programs. The extra “Master’s cap” numbers are used up approximately fast or faster than the regular H-1B cap.

If you would like H-1B visa cap help, contact Karin Wolman or a consultation today!

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