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 H-1B type of 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 change of 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 the 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!).
This H-1B cap tragic drama reached its highlight when USCIS announced on June 1, 2006, that it had received enough 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.”
Current Quota Break Down
As we discussed above, the H-1B cap for FY 2006 is 65,000. Of the 65,000 total, 6,800 are set aside for citizens of Chile and Singapore under free trade agreements. As a result of reserving 6,800 H-1B1 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-1B1 visas for FY 2006 have been already allocated in this manner, there will be no additional later H-1B filing season to use these visas. The 6,800 visas reserved from the FY 2007 H-1B count for FY 2007 H-1B1 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-1B1 visas based upon reasonable projections of usage to the end of the fiscal year will not affect the availability of H-1B1 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 above H-1B cap 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. Comparing to “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 has received approximately 5,830 petitions of this kind, remaining less than 15,000 spots for prospective petitioners to fill up.
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 has implemented the following process for handling H-1B petitions subject to the FY 2007 cap:
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USCIS closely monitored FY 2007 H-1B filings and used projections to determine the date on which it received the number of petitions necessary to reach the Congressionally mandated cap.
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USCIS determined that the Congressionally mandated cap had been exceeded on May 26, 2006, the "final receipt date."
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USCIS will subject H-1B petitions received on the "final receipt date" to a computer-generated random selection process. This process will enable USCIS to apply the remaining number of available H-1B visas to petitions received on that day.
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Cap subject H-1B petitions that are not randomly selected in the process described above will be rejected and returned along with the filing fee(s).
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Petitioners may re-submit the petitions when H-1B visas become available for FY 2008.
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The earliest date for which a petitioner may file a petition requesting FY 2008 H-1B employment with an employment start date of October 1, 2007, is April 1, 2007.
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.
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H-1B beneficiaries, who had worked as H-1B employees within the past six years, were counted against the H-1B quota and currently remain valid non-immigrant status (such as F, H, and etc.), will not be subject to the current H-1B cap;
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H-1B beneficiaries sponsored by institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from H-1B Cap;
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H-1B physicians who have received a J-1 Conrad 20 waiver of the 2-year home residency requirement based on work in a health professional shortage area are also exempt from 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:
1) Amended Petitions: If a “material change” has occurred in the terms and conditions of the employment of the alien employee (H-1B beneficiaries), the employer is required to file an “amended” petition. This type of petition is not subject to the H-1B cap.
2) Extension Petitions: If the H-1B beneficiary’s current status is about to expire and needs an extension for additional time, typically for another 3 years, the employer must file an H-1B “extension” petition. Like amended petitions, extension petitions are not subject to the H-1B cap.
3) Concurrent Employment: If the H-1B worker wants to work for Employer B while also working for Employer A that is subject to the cap or the alien has been subject to the cap in the past six years, Employer B files a “concurrent” H-1B petition on his or her behalf. This type of H-1B petition is not subject to the cap.
4) Sequential Petitions: If the alien work had been subject to the cap in the pats six years and wants to quit his/her job with Employer A and start his/her employment with Employer B, AC 21 portability rule can allow the alien worker to transfer his or her employment to the new employer prior to the approval of the petition by USCIS. Like the petitions above, sequential petitions are not subject to the cap either.
However, we should caution that the above situations may not necessarily fit to every H-1B alien worker who makes a job transfer. For instance, John is a university researcher and currently in H-1B status. Recently he finds a new job in private sector and the private employer will petition for H-1B for John. Under this circumstance, John may be subject to the H-1B cap because as a researcher, John has never been counted against the H-1B quota when he was employed by an institution of higher institution.
Coping Strategies for Alien Workers:
For an alien worker expecting to work in US under H-1B, there is no other issue more frustrating than a prematurely used up H-1B quota when s/he just receives a job offer from a US employer. As legal service provider, we sympathize with those alien workers in hardship. The following strategies are only general suggestions because various individual cases may lead to different strategies:
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The advanced degree exemption cap (20,000) has not run out yet, with more than 14,000 remaining on May 31, 2006. It seems we have a far tighter situation in the caps this year. We anticipate the 20000 advanced degree cap will also be met soon, because more and more qualified aliens will turn to this pool because there are no more H1B visas available in the 65,000 standard cap. If you have earned an American master’s or higher degree, you’re qualified for this cap. In order to catch the cap, you may even let your employer file H-1B petition under advanced degree category if you will obtain your degree before the start of the H-1B employment.
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OPT (Optional Practical Training) is anther viable option if you hold a valid F1 visa. OPT allows a student to work in their filed of study for a period of twelve months, followed by a 2 months grace period during which can remain in the US legally. Therefore, if your OPT starts from August 2006, you can work until August 2007, with the two more month grace period, you can bridge the cap and eligible for the H-1B for FY 2008.
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Another potential avenue is to change your status from OPT to EAD, without an H1B visa. Some green card applications are not based on H1B. For example, Green card application based on NIW does not require an H1B or employer’s sponsorship. If your I140 application is approved on time, and the status of the green card visa is available to you, you can submit the I485 application. Based on the I485 application, an EAD can be filed simultaneously. The processing speed of EAD is very fast right now. Then, it’s possible for you to obtain an valid EAD before your OPT expires. However, there are also some uncertainties in this option.
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:
1. Applications for extensions of H-1B status;
2. H-1B petitions for concurrent employment where the alien worker is presently in H-1B status that is subject to the cap;
3. H-1B petitions to change employers if the alien has been subject to the quota in the past six years;
4. H-1B applications sponsored by Institutes of higher education (or a related or affiliated nonprofit entity), government or nonprofit research organizations; and
5. H-1B applications for physicians who received J waivers under a Conrad State 20 Program.
6. The people who had H-1B status in the past six years that requires H-1B quota.
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 H-1B cap begin in 2007?
A: The fiscal year begins on October 1, 2006.
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 due to cap being reached:
1. The advanced degree exemption cap. There are 20,000 spots available for those who have a US earned advanced degree. If you qualify, you may be able to file under this.
2. OPT (Optional Practical Training) is anther viable option if you hold a valid F1 visa. OPT allows a student to work in their filed of study for a period of twelve months, followed by a 2 months grace period during which can remain in the US legally. Therefore, if your OPT starts from August 2006, you can work until August 2007, with the two more month grace period, you can bridge the cap and eligible for the H-1B for FY 2008.
3. Another potential avenue is to change your status from OPT to EAD, without an H1B visa. Some green card applications are not based on H1B. For example, Green card application based on NIW does not require an H1B or employer’s sponsorship. If your I140 application is approved on time, and the status of the green card visa retrogression turns to current sometime next year, you can submit the I485 application. Based on the I485 application, an EAD can be filed simultaneously. The processing speed of EAD is very fast right now. Then, it’s possible for you to obtain an valid EAD before your OPT expires. However, there are also some uncertainties in this option
4. Check to see if you are exempt from the H-1B cap:
· The extension of a current H1B.
· Multi-employment. A foreign worker can work for different employers simultaneously with different H1B visas. Where an employer petitions for a foreign worker who has had a first H1B visa counted against the quota, the second petition is exempt from the cap.
· If a foreign worker has changed his/her employer, and his/her former H1B was subject to the cap, the new petition is exempt.
· Where the employer is a higher education institution or a relevant non-profit entity, or a non-profit research organization, or a governmental research organization, a petition is exempt whatever the job is.
· Where the beneficiary is a physician who has received a J waiver under the Conrad 30 program, a petition is exempt.
· Where the beneficiary has been counted against the quota during the past six years, and never been out of the US for more than one year during the past six years, a petition is exempt.
5. Otherwise, if neither of the options above applies to your situation, you have to change to or extend the non-work immigration status. For instance, you may be enrolled in another academic program to keep your F1 status, or change to some other status based on your spouse's legal status
Q: How is the premium processing service affected by the cap?
A: When the USCIS has received sufficient H-1B petitions to reach the current fiscal year's 65,000 cap, the Premium Processing cases filed before the date that the quota 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 quota cap.
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