H-1B Annual Cap and Cap Exemptions

H-1B Annual Cap

• Total number of foreign nationals who may be issued H-1B visas or H-1B nonimmigrant status during any fiscal year may not exceed 65,000.
• If the statutory cap is reached within a fiscal year, subsequent petitions are returned by the Department of Homeland Security (“DHS”) with a notice that they should be resubmitted in the following fiscal year
  No backlog of petitions is created.
• For fiscal years 2001, 2002, and 2003, the upper limit on the H-1B cap was substantially higher at 195,000. It was regressed to 65,000 in 2004, and has been the same every year since then.

H-1B1 for Chile and Singapore

• Every fiscal year, 6,800 visas are set aside from the 65,000 for the H-1B1 program under the terms of the legislation implementing the U.S. Chile and U.S. Singapore free trade agreements.
• Unused visas in this group become available for H-1B use for the next fiscal year.

H-1B U.S. Master’s Cap

• Applicants who have earned a Master’s degree or higher from a U.S. institution of higher education, would be considered in US Master’s cap with an annual limit of 20,000.
• Petitions qualifying for Master’s cap quota, and exceeding over 20,000 will be subject to the 65,000 H-1B cap unless the applicant is eligible for another exemption for the H-1B cap.
• In reviewing H-1B petitions, it will be first determined whether there is another basis to exempt applicant from the 65,000 H-1B cap before considering the master’s or higher degree exemption, thereby freeing up potential exemptions from the 20,000 annual limit.

H-1B Cap Exemptions

A filed H-1B petition can be considered Cap-Exempt under following situations:

1. If an H-1B petition for a worker has been considered towards the Cap in the past (6) six years, a US employer can file a new H1B under cap-exemption for that worker. In other words, the petition is not subject to annual cap, a new or the same employer can file an H1B like an H1B Transfer. The only difference would be that unlike an H-1B transfer, worker would only be able to work for the employer upon approval of this petition.
2. A petition to extend an H-1B worker’s period of stay (“H-1B Extension”), filed by the same employer. The worker should be maintaining an H-1B status in the US.
3. A petition is filed for an H-1B Amendment due to a material change in the petition (e.g. change of client, job position, duties etc.). The worker should be maintaining an H-1B status in the US, and the amendment will be filed by the same employer.
4. A petition to request a new H-1B employment for the worker (“H-1B Transfer”) by a new employer. The worker should be maintaining an H-1B status in the US.
5. If employer is an institution of higher education or non-profit entity affiliated with or related to an institution of higher education.
6. If employer is a non-profit research organization or governmental research organization.