The Cap

The H-1B nonimmigrant category allows U.S. employers to hire highly skilled temporary workers from abroad. However, there is a fixed number of H-1B spaces available every year, and this quota, or cap, has tended to be exhausted very quickly. In the past several years, in fact, the cap has been met within several business days after H-1B filing season began.

What is the H-1B cap?

Authorized statutorily by Congress, the H-1B cap sets a limit on the number of these visas that U.S. Citizenship and Immigration Services (USCIS) can issue to foreign workers every fiscal year. (A fiscal year runs from October 1 of one year to September 30 of the following year.)

There are actually two quotas encompassed in the H-1B cap: the regular cap comprising beneficiaries with bachelor’s degrees, and the “master’s cap,” which is reserved for beneficiaries with at least a master’s degree from a U.S. school. The numerical limit for regular H-1B petitions is 65,000 visas annually, while the master’s cap reserves an additional 20,000 H-1B visas per year.

Within the regular cap, a maximum of 6,800 visas is set aside for beneficiaries eligible for a subtype of the H-1B visa, the H-1B1. This subcategory is reserved for alien workers from Chile and Singapore, as stipulated in free trade agreements between the U.S. and those countries. Any unused H-1B1 visas are factored back into the regular cap.

Brief History of the Cap

In 2020, USCIS implemented an electronic registration process for the H-1B cap. USCIS will accept and consider a cap-subject H-1B petition only if it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year.

The H-1B cap dates back nearly three decades. Under the Immigration Act of 1990, Congress first imposed the 65,000 annual quota for each fiscal year. While the first imposition of the cap occurred during fiscal year 1992, the cap was completely exhausted for the first time five years later, in fiscal year 1997.

For a brief period, after passage of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), the cap was nearly doubled from 65,000 visas to 115,000 from 1999 to 2000. The underlying reason Congress used to justify the expansion was meeting the growing labor needs of U.S. employers. The temporary increase wasn’t sufficient, apparently, as the cap was increased again to 195,000 visas after Congress passed the American Competitiveness in the 21st Century Act (AC21) in October 2000. The quota remained at this level until 2003. In light of the increases, during these few years in the 1990s and 2000s, the fear about “running out” of H-1B spaces was effectively nonexistent.

That fear emerged beginning in fiscal year 2005, however, as the H-1B cap was brought back down to 65,000. During this year, the H-1B cap was reached on October 1, 2004, i.e. the very first day of fiscal year 2005, based on petitions that had been filed between April 1 and October 1. By the subsequent year, the cap was exhausted a month earlier.

Frustration over H-1B cap exhaustion continued to intensify when USCIS announced on June 1, 2006, that it had received so many H-1B petitions as of May 26, 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) at the time, the announcement was “unprecedented,” marking “the second year in a row that the H-1B cap has been prematurely reached.” The trend would become standard from then on.

Limited Supply, High Demand

Over the past several years, the H-1B visa has solidified its place in the U.S. immigration system as one of the nonimmigrant channels most favored by petitioning employers and foreign workers alike. As a result, there has tended to be a large discrepancy between the number of H-1B petitions filed every year and the number of H-1B visas available to be doled out.

Cap Fiscal Year

Total Registrations

Eligible Registrations*

Eligible Registrations for Beneficiaries with No Other Eligible Registrations

Eligible Registrations for Beneficiaries with Multiple Eligible Registrations

Selected Registrations

2021

274,237

269,424

241,299

28,125

124,415

2022

308,613

301,447

211,304

90,143

131,924

2023

483,927

474,421

309,241

165,180

127,600

2024

780,884

758,994

350,103

408,891

188,400

2025

479,953

470,342

423,028

47,314

135,137

2026

358,737

343,981

336,153

7,828

120,141

 

H-1Bs that are awarded for a given fiscal year may be used by alien beneficiaries no earlier than the first day of said fiscal year, i.e. October 1. As such, October 1 is the earliest day an H-1B beneficiary can begin working in his or her “specialty” occupation position.

Implications of the Cap

An H-1B cap-subject petition for a beneficiary may not be filed unless based on a valid and selected registration for the beneficiary.

To submit an H-1B registration, employer should create a USCIS online Organizational account, use the account to enter beneficiaries into registration, and pay the registration fee ($215 for fiscal year 2026) for each beneficiary, within the registration period. Employers should make sure they file the registration properly, especially the information provided on the registration and the petition matches.

If the account displays a “Selected” status for a certain beneficiary, the employer can file an H-1B cap petition for the beneficiaries within a period designated in the selection notice. Usually, if the beneficiary is selected on March 31, then the petitions should be properly filed between April 1 and June 30.

The following are important dates for H-1B cap-subject registration and petition (Take 2025 schedule for example)

March 7: H-1B registration period opened at noon Eastern.

March 24: H-1B registration period closed at noon Eastern.

March 31: Date by which USCIS notified selected registrants.

April 1: The earliest date that FY 2026 H-1B cap-subject petitions based on the registrations selected during the initial FY 2026 selection period were able to be filed.

It is essential that you entrust your H-1B application to careful, thorough, and experienced attorneys. At Zhang & Associates, we give your application multiple rounds of review and guarantee that your registrations and petitions are submitted properly. Contact us to find out more about your H-1B options.

Exemptions from the Cap

Under the American Competitiveness in the Twenty-First Century Act (or AC21, which you can view in full here) and other legislation passed by Congress, certain categories of employers and alien workers are exempted from the H-1B cap. The following three scenarios describe situations to which the cap isn’t applicable.

  1. H-1B beneficiaries who were already subject to the H-1B quota any time within the past six years and who have not exhausted their full six years of H-1B status (unless they are eligible for a new H-1B status at the time the petition is filed)

  2. H-1B physicians who have received a Conrad 30 waiver of the two-year home-residency requirement for J-1 visa holders based on work in a health professional shortage area

  3. H-1B beneficiaries sponsored by institutions of higher education or related or affiliated nonprofit entities, or by nonprofit research organizations or governmental research organizations

For aliens currently in H-1B status, newly filed petitions are likewise not subject to the H-1B cap in the following situations:

  1. Six Year Window: Any current H-1B holder who has been subject to the cap within the previous six years will not be subject to the cap when filing any new H-1B petitions.

  2. Transfer: A worker currently in H-1B status can stop working for his or her original H-1B sponsor and begin working for a new employer. However, the new employer must file a new H-1B petition on the employee’s behalf. Fortunately, this new petition will not be subject to the cap, so the employee can begin work on the day USCIS receives the petition.

  3. Extension Petitions: If the H-1B beneficiary’s current status is about to expire and he or she needs an extension for additional time (typically for another three years), the employer must file an H-1B “extension” petition.

  4. Amended Petitions: If a “material change” has occurred in the terms and conditions of the employment of the alien employee, the employer is required to file an “amended” petition.

  5. Concurrent Employment: H-1b worker concurrently working for a new employer, cap-subject or not, will not become subject to the H-1B cap during the same H-1B validity period, so long as the worker continue the cap-exempt employment, were previously counted toward the cap, or otherwise remain cap exempt.

From Cap-Exempt to Cap-Subject Employers

If an H-1B worker who worked for a cap-exempt employer are moving from cap-exempt to cap-subject employment, new employer’s H‑1B petition will be subject to the H-1B cap, and the new employer must first submit an electronic registration when registration period opens. If the worker is selected, the employer may file a petition for the worker during the filing period.  H-1B cap petitions must have a start date not earlier than Oct. 1 of the applicable fiscal year.

On the other hand, the worker may begin working concurrently for the cap-subject employer as soon as they properly file a non-frivolous Form I-129 petition, or as of the requested start date on that petition, whichever is later, as long as the worker will continue to be employed in the cap-exempt position.

So long as the worker continue the cap-exempt employment, were previously counted toward the cap, or otherwise remain cap exempt, you will not become subject to the H-1B cap again during the same H-1B validity period.

What if an H-1B worker was never subject to the cap because she worked for a cap-exempt employer but now wants to change jobs and start working for a cap-subject employer? In such a common occurrence, she has a viable path forward.

When H-1Bs become available again (i.e. when the cap is replenished for the subsequent fiscal year, beginning in April), she can switch from a cap-exempt employer to a cap-subject employer by virtue of the portability rule. However, it is important to note that if her H-1B transfer petition is approved before October 1 (i.e. the start of the next fiscal year), the employee should stop working for her new employer at the time of approval and wait until October 1 to begin working in the approved H-1B position. If the H-1B cap has been met for the fiscal year and an employee of a cap-exempt H-1B petitioner wishes to transfer to a cap-subject employer utilizing the portability rule to start working immediately for the new employer, the transfer petition could be viewed as frivolous and thereafter be denied. USCIS has made it clear that it will only approve an H-1B petition filed under these circumstances if the beneficiary does not end employment by the cap-exempt petitioner. (For more information about this, see the following USCIS memorandum: Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications.)

Let’s consider the implications of the above situation through a credible case study.

Background

Pablo is a researcher in H-1B status at the University of Hooyou, which is a cap-exempt employer. Pablo has recently found a new job with a private company, and this prospective employer would like to petition for an H-1B visa for Pablo.

Analysis

Given that the University of Hooyou is exempted from the H-1B cap as an institution of higher learning, Pablo was not subject to the quota when he originally applied for H-1B status. Accordingly, if the current H-1B quota has been met, he is ineligible to port his H-1B status to the new private-sector employer. If the quota has not been met and there are still H-1B spaces available, then he is able to use the portability rule to transfer to the new private-sector employer and begin working for it after USCIS receives the transfer petition *counted among quota*. However, Pablo and his new employer should be aware that if his transfer petition is approved before October 1, he should cease working for the new employer at the time of approval and only resume work after October 1. It is important to note that the receipt notice will be issued either when the petition is selected in quota or when it is filed when the quota hasn't been exhausted.

Coping Strategies for Alien Workers

For an alien worker expecting to work in the U.S. under an H-1B, there is little more frustrating than receiving a job offer from a U.S. employer after the quota has already been met. As a legal services provider, we sympathize with alien workers who experience hardship because of this. The following strategies are general suggestions for coping with this situation, although individual cases may require different approaches:

  1. Certain individuals who are in F-1 status can use OPT to their advantage to help them cope with the H-1B cap. Let us explain. It is common for employers to hire recent graduates who studied in the U.S. on F-1 student visas and apply for H-1B visas on their behalf. F-1 holders are granted a certain period of “optional practical training,” or OPT.

OPT generally allows a student to work in her field of study for a period of twelve months, followed by a two-month grace period during which she is permitted to remain in the U.S. legally. Thus, assuming an alien’s OPT starts in August 2017, then she is able to work until August 2018, and the subsequent two-month grace period would allow her to bridge the gap until October 2018, by which point her H-1B petition is, hopefully, approved.

However, the Department of Homeland Security recently issued a final rule allowing F-1 students studying in a science, technology, engineering, or mathematics (STEM) field to extend their post-completion OPT period by 24-months. Thus, STEM students in F-1 status have extra time available to work in the U.S. if they aren’t successful in obtaining an H-1B.

  1. Certain individuals who are in F-1 status can use OPT to their advantage to help them cope with the H-1B cap. Let us explain. It is common for employers to hire recent graduates who studied in the U.S. on F-1 student visas and apply for H-1B visas on their behalf. F-1 holders are granted a certain period of “optional practical training,” or OPT.

    OPT generally allows a student to work in her field of study for a period of twelve months, followed by a two-month grace period during which she is permitted to remain in the U.S. legally. Thus, assuming an alien’s OPT starts in August 2017, then she is able to work until August 2018, and the subsequent two-month grace period would allow her to bridge the gap until October 2018, by which point her H-1B petition is, hopefully, approved.

    However, the Department of Homeland Security recently issued a final rule allowing F-1 students studying in a science, technology, engineering, or mathematics (STEM) field to extend their post-completion OPT period by 24-months. Thus, STEM students in F-1 status have extra time available to work in the U.S. if they aren’t successful in obtaining an H-1B.

  2. Students with an F-1 visa are also eligible for curricular practical training (CPT). CPT allows students to work in a job related to their field of study while they are still studying. Thus, if an H-1B hopeful is offered a job by a U.S. employer but is unsuccessful in the H-1B cap, one option is to obtain F-1 status to return to school and work for the employer using CPT, as long as the job is related to the student’s field of study. This will give them the opportunity to work while waiting for the H-1B cap to refill in subsequent years.

  3. A third option for H-1B hopefuls frustrated by the cap is to apply for O-1 status. The O-1 is a temporary employment based status reserved for individuals who possess “extraordinary ability” in the sciences, arts, education, business, or athletics. While this status is limited to three years, it does have some advantages over the H-1B for some individuals, which you can read about here.

  4. Another potential strategy for aliens whose H-1B petitions were not selected or approved is to change from OPT status to status under an Employment Authorization Document (EAD). Applications for permanent residency are not based on H-1B status. Some green card applications, such as EB-1A and National Interest Waivers (NIW), do not require an employer’s sponsorship. And so if an alien’s Form I-140 petition is approved on time and visa numbers are available to him, then the alien can can submit a Form I-485 petition along with an EAD application. The processing timeline for an EAD is comparatively faster, making it possible to obtain a valid EAD by the time one’s OPT expires.

Frequently Asked Questions about the H-1B Cap

Q: What is the H-1B cap?

A: The H-1B cap is a limit set by Congress on the number of H-1B visas granted annually. This cap applies to workers admitted to the United States as H-1B visa holders and to people changing their status to H-1B from another status (e.g., B-1, F-1, J-1, etc.).

Q: What is the cap currently set at?

A: Currently, the cap is set at 65,000 H-1B visas per year. Of these, 6,800 are reserved for citizens of Chile and Singapore under free trade agreements. An additional 20,000 H-1B visas are set aside for aliens with U.S.-earned master’s degrees or higher.

Q: What happens to unused spots reserved for citizens of Chile and Singapore?

A: Unused H-1B1 numbers will become available for H-1B use for the next fiscal year’s regular H-1B cap.

Q: If I hold an advanced degree from the U.S., does this mean I have to petition for one of the 20,000 master’s cap spaces?

A: You may be selected in either regular cap or master’s cap.

Q: Who is exempted from the H-1B cap?

A: The following H-1B applications are not subject to the cap:

  1. Applications for extensions of H-1B status,

  2. H-1B petitions for concurrent employment when the alien worker is presently in H-1B status that was subject to the cap,

  3. H-1B petitions to change employers when the alien was already subject to the quota in the past six years,

  4. H-1B applications sponsored by institutions of higher education (or a related or affiliated nonprofit entity), or government or nonprofit research organizations, and

  5. H-1B applications for physicians who received J waivers under a Conrad 30 waiver.

Q: How soon can my prospective employer file an H-1B petition for me after a job offer is extended?

A: The earliest an employer can file an H-1B petition is six months prior to the employment date indicated in the petition.

Q: When does a fiscal year begin?

A: Fiscal years begin on October 1.

Q: How is the premium processing service affected by the cap?

A: Premium processing cases filed before the date that the cap is reached will be processed with premium processing, i.e. within 15 days of USCIS’ receipt of the application Premium processing has no effect on the cap itself.

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: Not necessarily. If you were subject to the H-1B quota in the past six years and worked for the H-1B employer in H-1B status, your new H-1B will not be subject to it again. If you change your job to an H-1B cap-exempt organization, the new H-1B is similarly not subject to the cap. However, if you were not subject to the H-1B quota in the past six years but now want to work for a cap-subject employer, the new H-1B will be subject to the cap.

Q: I am currently working for one company in 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, 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. I’d like to apply for H-1B status. Will my new H-1B petition be subject to the cap?

A: If your previous H-1B was subject to the cap within the past six years, you will not be subject to the cap. However, if you have been out of the U.S. for more than one year and your previous H-1B status did not exceed six years, USCIS allows you either:

  1. To be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted; or

  2. To seek to be admitted as a “new” H-1B alien subject to the H-1B cap.

In either case, the U.S. employer needs to file an H-1B petition and get USCIS approval first.

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles

 

Updated 05/08/2017