H-1B Cap Resource Page

April 17, 2018

 

Updates

FY-2019 cap filing season. The FY-2019 H-1B cap filing season began on Monday, April 2, 2017 (since April 1, 2018 was a Sunday), and USCIS announced on April 6, 2018 that it had already met both the 65,000 cap and the 20,000 U.S. advanced degree "master’s cap." On April 11, 2018, USCIS completed its computer-generated random selection of cap-subject petitions received from April 2 through April 6. USCIS will reject and return filing fees for all unselected cap-subject petitions, but will continue to accept and process petitions that are otherwise exempt from the cap, such as those filed by institutions of higher education.

Premium processing temporarily suspended for cap-subject cases. On March 20, 2018, USCIS announced: "Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. We will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018." In its notice, USCIS clarified that," During this time, we will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap."

  • Petitions filed by institutions of higher education, being exempt from the H-1B cap, may continue to request premium processing.
  • The American Immigration Lawyers Association (AILA) reported in its summary of the January 24, 2018 USCIS Service Center Operations Directorate (SCOPS) meeting with AILA's SCOPS Liaison Committee that... "USCIS is not anticipating any procedural changes in the way H-1B cap petitions will be filed for FY19. USCIS plans to follow previous protocols which may include delaying premium processing to allow the Service Centers time for data entry and to process the high volume of cap petitions. USCIS does not have plans to suspend premium processing for other types of H-1B petitions at this time. USCIS may shift workloads or consider premium processing suspension if needed." [AILA Doc. No. 18020601]

Tips for preparing any H-1B petition. USCIS has increased scrutiny of both the position's and the beneficiary's eligibility for H-1B classification. Some tips:

 

Brief Background on the H-1B Cap

Federal law sets an annual fiscal-year limit of 65,000 on the number of new H-1B "slots" available. This number is commonly referred to as the H-1B Cap. When the available H-1B numbers have been used for the federal fiscal year, which begins October 1 and ends September 30, the cap is considered reached, and no new cap-subject petitions can be approved until the filing period for the next fiscal year's numbers opens. If an H-1B petition is revoked because of fraud or willful misrepresentation of a material fact, then that H-1B visa number will be restored to the supply of H-1B numbers available in the fiscal year in which the petition is revoked.

Exemptions from cap-counting

The following groups are not subject to the general H-1B cap [INA § 214(g)(5)-(11)]:

  • Employment at a cap-exempt employer, including:
    • institutions of higher education,
    • nonprofit entities related to or affiliated with an institution of higher education,
    • nonprofit research organizations, and
    • governmental research organizations.
     
  • Certain employees who were counted against the cap during the past 6 years.
  • Employees already in H-1B status that were already counted against the cap, and are applying for extension of stay, an amendment to the H-1B petition, or for a change of employer.
  • J-1 physicians granted Conrad waivers of the 212(e) requirement.
  • Citizens of Singapore and Chile applying for special H-1B status under one of the Free Trade Agreements with those countries are counted from a special set-aside of 6,800 numbers. (Unused numbers from the 6,800 set-aside are made available for general use at the beginning of the following fiscal year.)
  • The first 20,000 employees who have earned a master's degree or higher from a U.S. institution of higher education are not counted towards the cap (but are counted after the first 20,000 slots have been taken).

How USCIS determines whether the cap applies

USCIS uses the information provided in Section 3 of the H-1B Data Collection and Filing Fee Exemption Supplement of Form I-129 to determine whether a petition is subject to the H-1B cap, or whether it is eligible for one of the cap exemptions.

What happens when the cap is reached

When the cap is reached, no additional H-1B petitions will be approved until the next fiscal year's filing season begins, unless the petition is filed by a cap-exempt employer, or unless the H-1B beneficiary is otherwise exempt from being counted against the cap for that fiscal year. Since the earliest a petitioner can file an H-1B petition is six months before the requested start date, April 1 begins the filing season each year.

Key H-1B Regulations

Government H-1B Links

NAFSA Resources