H-1B is a nonimmigrant visa status classification assigned to foreign workers employed temporarily in specialty occupations. In general, at minimum, to qualify as a specialty occupation, the offered position must require the minimum of a U.S. baccalaureate degree or its equivalent. Typical H-1B occupations include but are not limited to accountants, architects, computer programmers, and college professors.

The H-1B Quota

In order to obtain an H-1B visa, the U.S. employer planning to hire the foreign worker must file an H-1B petition with the United States Citizenship and Immigration Services (USCIS) on behalf of the prospective foreign worker. It is important to know that most foreign workers seeking such H-1B classification for the first time are subject to the H-1B cap. The H-1B cap is a numerical limit set by the U.S. Congress for new H-1B admissions for each fiscal year. The current H-1B cap is 65,000 (with 20,000 reserved for U.S. master’s or advance degree holders). Therefore, even if the employer satisfies all the requirements for obtaining H-1B status for its employee, the petition may not be selected by the USCIS via random lottery process, especially if the number of petitions the USCIS receives each spring exceeds 65,000.

The earliest date an H-1B petition may be filed is six (6) months in advance of the employment start date, which, for new H-1B filings, is October 1, the start of the U.S. fiscal year. Therefore, in order for the foreign worker to start on time on October 1, the petitioner may file the H-1B petition as early as April 1 of the previous fiscal year. In order to stay within the H-1B cap, USCIS now announces the final day it will accept an H-1B petition for adjudication for that fiscal year based on the number of petitions it has received at its service centers. Once USCIS stops accepting the H-1B petitions, USCIS will proceed to randomly select filed petitions from among those it has received and continuously do so until it has filled the numerical cap. Those petitions that were not selected or those that were received after USCIS-announced last receipt date are returned to the petitioner along with the filing fees. .

Therefore, although timely filing of the H-1B petition does not guarantee selection for adjudication, we still believe that it is important to submit the petition early in the filing period and to keep track of the last receipt date as set by USCIS in order to maximize the chances of being selected in the USCIS random selection process.

H-1B Cap Exemptions

Although most initial H-1B petitions are subject to the H-1B cap, there are certain groups of applicants who are exempt from the H-1B cap. As part of the 65,000 cap, up to 20,000 new H-1B admissions are granted each fiscal year to foreign nationals who have been awarded a master’s or higher degree from a university in the United States. As with the “regular” cap, USCIS will also announce the last receipt date for the 20,000 cap-exempt H-1B petitions and then conduct the random selection process for those applicants. In fact, these advanced degree applications take precedent over those other H-1B petitions that do not have advanced degree qualifications. As a result, those applications that were not selected in the initial “lottery” are allowed to undergo a second round of the selection process, by being included with those applications that are not filed by U.S. advanced degree holders. So, these advanced degree holders get a second crack at the selection process.

Furthermore, apart from the 65,000 numerical cap, foreign nationals who have been offered H-1B employment at certain qualified organizations such as an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, or a governmental research organization, are not subject to the H-1B cap at all. However, if the H-1B worker later decides to transfer employment to a non-qualified private employer, then that H-1B worker’s H-1B petition will not be exempt from the H-1B quota.

Lastly, petitions for individuals currently holding a J-1 visa who are filing for change of status to a H-1B visa and who have obtained waivers through the Conrad 30 Program or other federal government programs are also exempted from the H-1B cap.

It should be noted that the H-1B cap only applies to initial H-1B petitions. Therefore, the cap does not apply to petitions for transfer of H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions.

Alternative Visa Options for H-1B Capped Applicants

As stated above, a “capped” H-1B petition will be returned to the petitioner once the H-1B quota has been met. The petitioner is still allowed to file the H-1B petition in the next fiscal year. Employers with H-1B petitions that did not meet the quota often inquire about alternatives to bring their prospective employees to the United States. Some alternative employment visa options besides the H-1B visa status for the potential foreign worker aliens include L-1 visa for intra-company transfer; F-1 visa for academic students, or E visa for aliens planning to be employed with an employer qualifying under the treaty of commerce and navigation between the U.S. and the company’s “nationality” country. However, a person eligible for an H-1B visa is not automatically eligible for the above visas, and one must always consult with an immigration attorney to determine a viable alternative visa option.

Cap-Gap Extension for F-1 Students

It also bears noting that the H-1B cap affects F-1 students who are eligible for H-1B in a most direct way. The employment start date for newly approved H-1B workers starts when the next fiscal year begins, which is on October 1 of each year. However, their authorized stay (i.e., post-completion OPT period plus the 60-day departure preparation period) of an F-1 student who is a beneficiary of an H-1B petition may expire before October 1. Therefore, in the past, such F-1 students had to leave the U.S. and return only once the H-1B effective date started. In order to solve this problem, which can cause great financial and logistical issues for the prospective H-1B worker, the period of stay and work authorization for all F-1 students with a pending H-1B petition are automatically extended by rule of USCIS. In addition, the cap-gap extension allows students whose H-1B petitions have been approved to remain in the United States and continue working until the H-1B employment start date in October of each year. However, the automatic extension terminates when the H-1B petition filed on behalf of the student is not selected during the acceptance period.

Conclusion

In fiscal year 2008, USCIS received H-1B petitions totaling nearly twice the 65,000 cap on the first day it started accepting H-1B petitions. Such a massive number of petitions create a problem of unpredictability of employment both for the U.S. employer and the prospective foreign worker. Therefore, it is important for both the U.S. employer and the potential H-1B beneficiary to understand and monitor the H-1B cap situation for each filing year as well as consult with an immigration attorney in order to be prepared with alternative plans.

Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.

 

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