H-1B Cap Resource Page

August 29, 2018

 

Updates

FY-2019 cap filing season. The FY-2019 H-1B cap filing season began on Monday, April 2, 2018, and closed on April 6, 2018.

  • On April 6, 2018, USCIS announced 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 (lottery) of cap-subject petitions received from April 2 through April 6.
  • On May 15, 2018, USCIS announced that it had completed data entry for all cap-subject petitions selected in the lottery. "USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their 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."
  • On July 30, 2018, USCIS announced that it "has returned all fiscal year 2019 H-1B cap-subject petitions that were not selected in the computer-generated random selection process... If you submitted an H-1B cap-subject petition that was delivered to USCIS between April 2 and April 6, 2018, and you have not received a receipt notice or a returned petition by August 13, you may contact USCIS for assistance."

USCIS 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 August 28, 2018, USCIS extended until February 19, 2019, the suspension of premium processing for cap-subject H-1B petitions. That suspension began on April 2, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap, including petitions filed by institutions of higher education. The USCIS notice states:

"The suspension does not apply to:

  1. Cap‐exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
  2. Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I‐129) with a concurrent request to:
  1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I‐129); or
  2. Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I‐129).

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I‐129."

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