H-1B Cap Resource Page

May 18, 2019

 

Updates

FY 2020 cap filing season

  • The FY-2020 H-1B cap filing season opened April 1, 2019.
  • On April 5, 2019, USCIS announced that it had received a sufficient number of petitions to reach the 65,000 H-1B visa regular cap.
  • On April 11, 2019, USCIS announced that it had also received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap
  • USCIS will reject and return all unselected cap-subject petitions with their filing fees.
  • USCIS continues to accept and process petitions that are exempt from the cap, such as those filed by institutions of higher education. "Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2020 H-1B cap."
  • On May 17, 2019, USCIS announced that it "has completed data entry for all fiscal year 2020 H-1B cap-subject petitions selected in our computer-generated random selection process, including those selected under the U.S. advanced degree exemption. As in previous years, we will now begin returning all H-1B cap-subject petitions that we did not select and will issue an announcement once we are done notifying petitioners. Due to the volume of filings, we cannot provide a definite time frame for returning unselected petitions. We ask petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition that we have returned. Additionally, we may transfer some Form I-129 H-1B cap-subject petitions between the Vermont Service Center and the California Service Center to balance the workload and enhance efficiencies. If we transfer your case, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition."
  • DHS's final H-1B cap filing and processing rule became effective on April 1, 2019, the first day of the FY 2020 cap-filing season. DHS suspended the portion of the rule relating to the new employer preregistration requirement for the FY 2020 fiscal year filing season, so cap-subject filing procedures remained very similar to past procedures. Changes other than the employer preregistration requirement, including how DHS counts petitions towards the cap, go into effect on the effective date. See NAFSA's page for details.

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:

Premium Processing

Premium Processing for FY 2020 Cap-Exempt Petitions

At this time, premium processing remains available for H-1B petitions that are exempt from the cap, such as extension of stay requests and petitions filed by cap-exempt petitioners such as institutions of higher education.

Premium Processing for FY 2020 Cap-Subject Petitions

For FY 2020 cap-subject petitions, USCIS announced:

"Premium processing will be offered in a two-phased approach during the FY 2020 cap season so USCIS can best manage the premium processing requests without fully suspending it as in previous years. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions.

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS will begin premium processing for these petitions no later than May 20, 2019, and will notify the public before premium processing begins for these petitions. If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907. Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907.

Premium processing for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019. Cap-subject petitioners not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status."

 

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.)
  • 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. Starting with the FY 2020 H-1B cap-filing season, USCIS will first allocate numbers from the general cap to all petitioners eligible to file (including petitions with beneficiaries holding a U.S. master's or higher degree) and then allocate 20,000 more to petitions with beneficiaries holding a U.S. master's or higher degree who had not been selected in the general cap selection process. See NAFSA's page on the final rule effective April 1, 2019 for more information.

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

H-1B Cap Resources

NAFSA Resources