Understanding the H-1B “cap” 配额

You probably have heard at least something about the H-1B cap 配额. In this post, I will explain it in more detail, because the cap might be important for you if you seek H-1B status.

The cap was established by the U.S. Congress, via a provision of the Immigration and Nationality Act (INA). Each fiscal year (that is, the federal fiscal year, which runs from October 1 to September 30 of the following year), the number of H-1B approvals is limited to 65,000. When a new fiscal year begins, then a new set of 65,000 H-1B approvals becomes available. Unfortunately, though, the real cap isn’t 65,000, it really, for most people, could be as low as 58,200. The reason for this lower number is that up to 6,800 of the total 65,000 are reserved for nationals of Chile and Singapore.

Several groups of people are not affected at by the cap, or are only partially affected. The first group are those who will be working for an employer which, by law, is exempt from the cap—that is, a cap-exempt employer. Examples include government research organizations such as the National Institutes of Health, nonprofit research organizations and institutions of higher education.  Note that simply being a nonprofit organization, or simply being a non-government organization (NGO) does not by itself make an employer cap-exempt.

The second group not affected by the cap are those who, during the previous six years, had H-1B status at an employer who is subject to the cap (that is, a “cap-subject employer”). These people, should they again seek H-1B status, will be exempt from the cap even if the employer is cap-subject, because they already were counted under the cap. However, their H-1B time is limited to six years less their previous H-1B time. 

For example, suppose a person previously spent two years in H-1B status with a cap subject employer, then returned to school, in F-1, for a year. This person, following school, could change back to H-1B status, and would be cap-exempt even if the employer itself were cap-subject. However, this person would be limited to four years of H-1B cap-exempt time. This four year period arises because, as you may know, a person normally is limited to a maximum of six years of H-1B status, after which (if no green card petitions are begun) the person must leave the U.S. for at least a year before being able to return for more H-1B time.

The third group not affected by the cap are the first 20,000 people who have a master’s degree or higher from a U.S. university in a field related to their proposed H-1B job. By law, according to the INA, the petitions of these 20,000 people simply do not count against the cap. For example, suppose that during a fiscal year, no one from Chile or Singapore files a petition, meaning that the cap really is 65,000. Suppose 65,000 approvals are given to those who have only a bachelor degree. Even so, 20,000 people with master’s degree or higher from a U.S. university in a field related to their H-1B job can still be approved. Or, suppose the first 20,000 petitions the government receives are from such master’s degree or higher people. Nonetheless, the cap number will STILL be 65,000 even after these 20,000 are approved. This feature is called the “master’s cap exemption.”

The government tracks the cap based on the number of petitions it receives. Once it receives 65,000 petitions, it publishes that fact and then refuses to take any more. If the government receives more than 65,000 petitions on that last day, it will choose by lot those petitions that will be accepted under the cap.

Given this information, and assuming neither you nor your employer are cap-exempt, how can you benefit from this information?

-          Ask your employer to file as soon as possible

The earliest date to begin filing petitions is April 1. That is, the government will begin accepting petitions as early as April 1, for people to able to start H-1B jobs the following October 1. Obviously, the longer your employer takes to file, the more spaces will be taken and the greater the risk that the cap will run out before your employer can file. For this reason, you might want to (tactfully) remind your employer. Also, make sure you have all the materials that your attorney, or whoever is preparing your petition, is asking for.

-          Save your money, because premium processing DOES NOT help with regard to the cap

People who file H-1B petitions have the option of selecting premium processing. Under this arrangement, the government can decide on the petition within 15 calendar days, as opposed to the normal two to three months. Premium processing has its uses, but be aware that getting your petition to the government “faster” so as to “beat the cap” is NOT one of them. That is, premium processing does NOTHING to ensure that your petition will be received faster than another non-premium processing petition. Rather, all it means is that assuming your petition even is accepted under the cap, that will receive the promised service. However, those promised services will never occur if the petition is too late.

In other words, if you (or your employer) pay for premium processing because you think your petition will get there faster, you are wasting your money.

I hope this information is helpful. You are welcome to contact me at csun@calvinsun.com