On April 1, USCIS begins accepting H-1B cap petitions for employment in each fiscal year (October 1 of the current year through September 30 of the next year).
Employers who wish to have cap-subject foreign workers start employment in the new fiscal year should prepare to file their H-1B petitions on April 1.
F-1 student visa holders using Optional Practical Training (OPT) work authorization and foreign nationals who have never held H-1B status are subject to the H-1B cap.
What is the H-1B Cap?
Congress sets an annual limit on the number of new H-1B petitions that USCIS can approve each fiscal year. This is known as the H-1B cap.
Although Congress may increase or lift the cap, the current annual cap for new H-1B visas is 65,000. There is an additional 20,000 H-1B visas set aside for employees with a U.S. master’s degree or higher. Thus, the annual quota is 85,000 H-1B petitions.
Of the 65,000 H-1B visas, 6,800 are reserved for foreign workers from Chile (1,400) and Singapore (5,400), due to free trade agreements. This effectively reduces the number of regular H-1Bs available to 58,200 for most visa applicants.
How Long is the H-1B Cap Filing Period?
USCIS accepts H-1B cap petitions until the annual quota is met. In many recent years, the quota has been filled within the first five business days of April.
In fiscal year 2014, the regular H-1B visa cap of 65,000 was reached on April 5, 2013 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 5, 2013 (5 days).
In fiscal year 2015, the regular H-1B visa cap of 65,000 was reached on April 7, 2014 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 7, 2014 (5 days).
Due to economic growth and increased demand for H-1Bs, the annual cap will likely be reached in the first few days of April this year.
What is the H-1B Visa Lottery?
USCIS monitors the number of H-1B filings and notifies the public of the date on which it receives enough petitions to reach the cap. This date is known as the “final receipt date” (final day of acceptance).
If USCIS receives more H-1B petitions than it can accept, it will use a visa lottery system to randomly select the number of petitions required to reach the annual cap. This involves a computer-generated random selection of H-1Bs from the pool of petitions received on the final day of acceptance.
USCIS labels and identifies each of the petitions with a unique number that is used for random selection. The lottery allows USCIS to apply the remaining number of H-1B visas to the petitions received on the final receipt date.
USCIS first conducts the random lottery of the 20,000 H-1B cases eligible for the master’s cap exemption. Those cases not selected under the H-1B masters cap will then be included in the random lottery for the regular 65,000.
USCIS sends the list of all selected petitions numbers to the service centers. The USCIS service centers will then process and adjudicate the selected petitions.
Cap-subject H-1B petitions that are not randomly selected, as well as those received after the final receipt date, will be rejected and returned to the attorney or employer with the filing fee(s). If there were duplicative or multiple filings for an employee by the same employer, no fee will be returned.[UPDATE: On December 6, 2019, USCIS announced it would implement the electronic registration process for the fiscal year 2021 (FY 2021) H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 H-1B registration fee for each beneficiary. Only selected registrants may file an H-1B cap-subject petition.]
Who is Exempt from the H-1B Cap?
The H-1B cap does not apply to cap-exempt employers or cap-exempt foreign workers. Cap exemptions apply if:
- Your employer is an institution of higher education (e.g. a college or university)
- Your employer is a non-profit organization affiliated or related to an institution of higher education (e.g. a hospital or research facility)
- Your employer is a non-profit research organization or government research organization
- Your employer (third party petitioner) is not cap-exempt, but your employment is at an H-1B exempt institution (i.e. you will physically work at the institution of higher education or related or affiliated nonprofit and there is “nexus” between the work performed and the normal purpose of the nonprofit).
- Your employment is concurrent with exempt employment
- You were previously counted against the H-1B cap in the last six years (i.e. you were the beneficiary of an approved cap-subject H-1B petition with an effective date within the preceding six years, whether you are in the U.S. or abroad). [UPDATE, July 2017: USCIS has taken the position that you must have entered the U.S. under the previously approved petition and actually held H-1B status to qualify for this cap-exemption. See, e.g. Matter of T-S-,INC., AAO Decision.] Also, you are not cap-exempt if you would be eligible for a full 6 years of H-1B status at the time the new petition is filed due to, for example, being outside the U.S. for at least one year.
- You have a U.S. master’s degree (until the 20,000 master’s cap runs out)
- You are a physician with a Conrad 30 J-1 waiver, regardless of the nature of your employer
The H-1B filing period does not apply to employees who already have H-1B visa status, either with their current employer or with a previous employer. An H-1B petition that is not subject to the cap may be filed at any time and not be subject to the annual quota.
* * *
The filing date is when USCIS receives the H-1B petition (required forms, supporting documents and correct filing fees), not the date that the petition is postmarked. Unless an exemption applies, employers should plan to file their H-1B cap petitions on April 1, instead of relying on the filing window.
Although it’s not too late to prepare for an April 1st H-1B filing, employers and foreign workers need to be aware of potential delays and snafus, such as when obtaining a foreign credential evaluation and submitting the Labor Condition Application.
An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.
If employers miss the current year’s H-1B filing season, the next earliest date they may file their H-1B cap petitions is April of the following fiscal year, in which case employment may not begin until October 1 of that year. This might require them to consider other visa options (e.g. O-1, L-1 and TN), which have drawbacks and limitations.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
# # #
Photo by: Alan Cleaver