What is an H-1B Cap?
Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.
The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on an H-1B-type visa or authorized to change status if already in the United States. Therefore, there are two ways to be counted against the cap, applying for an H-1B visa or changing status to H-1B from another non-immigration status (such as F-1, L-1, J-1, and etc.)
The Cap History
Under IMMACT, Congress for the first time imposed an annual “cap” of 65,000 H-1B visas for each fiscal year (FY), which begins October 1 in the previous calendar year and ends September 30 in the current calendar year. The H-1B cap took effect October 1, 1991, at the start of FY 1992. The cap was first reached in FY 1997 and FY 1998. To meet US employers’ increasing hiring needs, in October of 1998 the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) was enacted and temporarily increased the H-1B cap for FY 1999 and FY 2000 to 115,000. The American Competitiveness in the 21st Century Act (“AC21”) was signed into law in October 2000 which increased H-1B numbers to 195,000 for fiscal years 2001, 2002 and 2003. Thus, during these years, the fear for running out of H-1B quota did not materialize.
After the H-1B cap was reduced to 65,000 in FY 2004, the “cap terror” started to take tolls on H-1B petitioners (US employers) and prospective beneficiaries (alien workers). In FY 2004, the cap was reached on February 17, 2004 (less than 5 months into the fiscal year). For FY 2005, USCIS announced on October 1, 2004, the first day of FY 2005, that the H-1B cap was reached based on petitions that had been filed between April 1, 2004 and October 1, 2004. On August 12, 2005, the USCIS announced that as of August 10, 2005, it had received enough cap-subject H-1B petitions to meet the annual cap for fiscal year 2006. (More than one month prior to the affected fiscal year!).
Frustration over the H-1B cap drama intensified when USCIS announced on June 1, 2006, that it had received so many H-1B petitions as of May 26 so that it would reject any cap-subject H-1B petitions received after that date. According to Deborah J. Notkin, president of the American Immigration Lawyers Association (AILA), “This is unprecedented. It marks the second year in a row that the H-1B cap has been prematurely reached.”
A Breakdown of the Current Quota
As mentioned above, the H-1B cap for FY 2006 is 65,000. Of the 65,000 total, 6,800 so-called H-1B(1) visas are set aside for citizens of Chile and Singapore under free trade agreements. As a result of reserving 6,800 H-1B(1) visas for FY 2007, the H-1B cap for that fiscal year is 58,200. However, USCIS has added back to the H-1B cap 6,100 unused FY 2006 H-1B1 visas, for a total of 64,300.
Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year. As FY 2007 H-1B petitions are approved for start dates beginning no earlier than the first day of fiscal year 2007 and reasonable anticipated usage of approved H-1B petitions for any 45-day period exceeds 8,000, USCIS has incorporated its reasonable projection based on H-1B1 usage to date that 700 H-1B1 visa numbers will be used in FY 2006 into the FY 2007 H-1B cap count by adding the remaining 6,100 unused H-1B1 visas back into that count, resulting in a total cap of 64,300 FY 2007 H-1B visas approvable.
Because unused H-1B(1) visas for FY 2006 have been already allocated in this manner, there will be no chance to use these visas in a later H-1B filing season. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B(1) purposes are anticipated to be handled in a similar manner with respect to the FY 2008 H-1B cap count during calendar year 2007. This allocation of FY 2006 H-1B(1) visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B(1) visas in any way; they will continue to be fully available, with any year-end difference between actual and projected usage expected to be minimal.
The H-1B cap described above is what we refer to as “standard cap.” As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters' or higher degrees will be exempt from any fiscal year cap on available H-1B visas. To emphasize the difference between this and “standard cap,” we call this category “advanced degree cap,” which actually increase the “standard cap” by another 20,000. As of June 1, 2006, the USCIS had received approximately 5,830 petitions of this kind, leaving fewer than 15,000 spots remaining.
USCIS Procedures After the Cap Is Reached:
In accordance with the procedures announced in the Federal Register at 70 FR 23775 (May 5, 2005) (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004), USCIS implemented the following process for handling H-1B petitions subject to the FY 2007 cap:
Based on the published USCIS procedures, even petitioners with a receipt date on May 26, 2006 can not be assured that their petitions will be processed because they are still subject to the random selection process in which only the “lucky” ones will be counted against the cap. It is also noted that any cap-subject petitions received after May 26, 2006 will be rejected by USCIS.
Certain Petitions Not Subject to Cap
Under AC21 and other legislation passed by Congress, there are certain types of employers and alien workers that are “exempt” from the H-1B cap.
For the Aliens currently in H-1B status, the newly filed petitions are not subject to H-1B cap in the following four situations:
Then what if a H-1B holder who worked for a cap-exempt employer and never subject to the cap in the past six years wants to port to a cap-subject employer? There are two situations regarding whether there is still any H-1B quota remained.
When there are H-1B visa numbers available, by virtue of portability rule, an employee can port from a cap-exempt employer to a cap-subject employer. However, be noted that under such circumstance, if the H-1B transfer petition is approved before October 1 of the fiscal year, the employee should stop working for the new employer at the time of approval and wait until October 1.
However, when the H-1B numerical limitation has been met for the fiscal year and an employee of a cap-exempt H-1B petitioner wishes to move to a cap-subject employer utilizing the H-1B portability to start work immediately at the new employer, an argument could be made that the H-1B petition filed by the new employer is frivolous and thus will be denied . USCIS also made it clear that it will only approve an H-1B petition filed under these circumstances if the beneficiary does not cease to be employed by the cap exempt petitioner. See USCIS Memorandum, D. Neufeld, “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)” (May 30, 2008)
For instance, John is a university researcher (cap-exempted) and currently in H-1B status. He finds a new job in the private sector and his private employer will petition for an H-1B visa for John. John has never been counted against the H-1B quota when he was employed by an institution of higher learning. Therefore, if currently the H-1B quota is used up, he may not port to the new employer. However, if there are still any H-1B numbers available, he can enjoy the portability rule to transfer and start working for the new employer as long as the USCIS receive the transfer petition. However, he should also be noted if his transfer petition is approved before October 1 of the year, he should cease to work for the new employer at the time of approval and can only resume the work after October 1.
Coping Strategies for Alien Workers:
For an alien worker expecting to work in the US under H-1B, there is no other issue more frustrating than a prematurely used up H-1B quota when s/he has just received a job offer from a US employer. As a legal services provider, we sympathize with those alien workers who experience hardship because of this shortage. The following strategies are only general suggestions for coping with this situation; individual cases may require different strategies:
Frequently Asked Questions:
Q: What is the H-1B Cap?
A: The H-1B cap is a numerical limit set by Congress as to how many workers may be admitted to the United States as H-1B type visa holders or may change from one status, such as B-1, F-1, J-1, etc., to H-1B.
Q: What is the cap limit currently set at?
A: Currently, the cap is set at 65,000. Of this 65,000, 6,800 spots are reserved for citizens of Chile and Singapore under free trade agreements.
Furthermore, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters' or higher degrees will be exempt from any fiscal year cap on available H-1B visas.
Q: What happened to the unused reserved spots for the citizens of Chile and Singapore?
A: Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year.
Q: If I hold an advanced degree from the US, like a master’s, does this mean I will have to be one of 20,000 people to petition in order to have an application approved?
A: No, you may try to use the regular quota first if it is available.
Q: Who is exempt from the H-1B cap? (not an inclusive list)
A: The following H-1B applications are not subject to the cap:
Q: How soon can my prospective employer file an H-1B petition for me after a job offer is extended?
A: The earliest one can file for H-1B visa/status is 6 months prior to the employment date written on the petition.
Q: When does the fiscal year for the H-1B cap begin in 2008?
A: The fiscal year begins on October 1, 2007.
Q: In recent years, how soon has the cap been reached?
A: For FY 2006, the cap was reached on August 10, 2005. For FY 2007, the cap was met on May 26, 2006.
Q: What can I do if my petition is rejected due to cap limitations?
A: There are a few options available to those who have been rejected because the cap was reached:
Q: How is the premium processing service affected by the cap?
A: Premium Processing cases filed before the date that the quota cap is reached will be processed by premium processing.
Q: I am in H-1B status now and would like to change jobs. Is the new H-1B petition for me subject to the H-1B quota cap?
A: there are three situations: 1) if you had been subject to the H-1B quota in the past six years, your new H-1B will not be subject to the H-1B quota. 2) If you change your job to an H-1B quota exemption organization, the new H-1B is not subject to the H-1B quota cap. 3) if you had not been subject to the H-1B quota in the past six years but now you want to work for an H-1B cap non-exemption company, the new H-1B will be subject to the H-1B quota cap this time.
Q: I am currently working for one company with H-1B status and I wish to work for another company concurrently. Will I be subject to the cap restrictions?
A: No. As long as one is in H-1B status in a company, petitions to work for another employer concurrently are not subject to the cap.
Q: I was in H-1B status but am now in F-1 (student) status and would like to apply for an H-1B status. Is the new H-1B for me subject to the H-1B quota cap?
A: If your previous H-1B was subject to the quota cap and was within the past six years, you are not subject to quota cap. However, if you have been out of the U.S. for more than one year, you are now subject to the quota cap.
For more information on H-1B Visa, please refer on one of the following topics below:
H-1B Visa General Issues
H-1B Visa Related Articles