H-1B Cap Resource Page

February 06, 2018

 
Updates

FY-2019 cap filing season. Since April 1, 2018 is a Sunday, the FY-2019 H-1B cap filing season begins on Monday, April 2, 2017. Last year's FY 2018 H-1B cap was reached shortly into the cap filing season, on April 7, 2017.

Preparing for filing in the FY 2019 Cap Season

Consider:

  • Possible impact on premium processing, for both cap-subject and cap-exempt petitions. During last year's FY 2018 cap filing season, USCIS temporarily suspended its premium processing service for H-1B petitions. That suspension impacted both cap-subject and cap-exempt petitions.
    • 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]
    • NAFSA note: Although USCIS told AILA that they don't currently anticipate suspending premium processing for petitions that are not subject to the cap, that the situation could change once USCIS begins receiving petitions. Be prepared if that happens.
     
  • Review USCIS policy focus over the past year. 2017 saw heightened USCIS scrutiny on 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