H-1B Cap Resource Page

July 20, 2017

 
Updates

FY-2018 cap filing season. The FY-2018 H-1B cap filing season began on April 3, 2017 and closed April 7, 2017.

  • On April 7, 2017, USCIS announced that it had "reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the master’s cap."

  • USCIS received 199,000 H-1B petitions during the April 3 - April 7, 2017 filing period.

  • On April 11, 2017, "USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing."

  • On May 3, 2017, USCIS announced "that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned. Additionally, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition."

  • On July 19, 2017, USCIS announced that it has returned all fiscal year 2018 H-1B cap-subject petitions that were not selected in the computer-generated random selection process, and advised: "If you submitted an H-1B cap-subject petition between April 3 and April 7, 2017 and have not received a receipt notice or a returned petition by July 31, you may contact USCIS for assistance."

 

See NAFSA's update page for updates on USCIS' temporary H-1B premium processing suspension.

F-1/H-1B cap-gap clarifications

In the preamble to the final STEM OPT rule, effective May 10, 2016, DHS clarified two aspects of the F-1/H-1B cap-gap benefit.

The first clarification is that a student can generally travel abroad and seek reentry to the United States in F-1 status during a period of cap-gap extension if the following three conditions are met:

  1. The student's H-1B petition and request for change of status has been approved;
  2. The student seeks readmission before his or her H-1B employment begins (normally at the beginning of the fiscal year, i.e., October 1); and
  3. The student is otherwise admissible. "However, as with any other instance in which an individual seeks admission to the United States, admissibility is determined at the time the individual applies for admission at a port of entry."

The second clarification is that only H-1B petitions filed by cap-subject employers can serve as the basis for F-1 cap-gap extension benefits. An H-1B petition filed by a cap-exempt employer like an institution of higher education, therefore, would not impart cap-gap treatment to a student. In the preamble to the final rule, DHS rationalized that such petitions did not justify the cap-gap benefit, since cap-exempt employers can file an H-1B petition at any time, whereas given the demand for H-1B slots, cap-subject employers must file their petitions requesting a future October 1 start date.

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 Adviser's Manual