11 Broadway, Suite 615 New York, NY 10004
In this day and age, there is no absolute guarantee of not being caught by the H-1B cap. However, there are steps one can take – subject to certain realities of the hiring process – which can minimize the risk.
The most obvious solution is to be prepared to file as soon as petitions are being accepted in order to have the best chance at getting an available H-1B for a given fiscal year. Generally, Citizenship and Immigration Services will not accept a filing for determination more than six months in advance of the requested start date. Since the earliest a new H-1B can be granted for a fiscal year is for the first day of the fiscal year – October 1 – the earliest a case may be filed against a given fiscal year’s H-1B cap is generally the preceding April 1.
Historically, USCIS has accepted filings for the first five business days of April (even if more than the allotted cap number is received on the first day), and at the end of the fifth day – assuming more petitions have been received than the 85,000 allotted H-1Bs – would stop accepting new filings and conduct a random lottery selection process. Up through 2018 (for the 2019 Fiscal Year’s allotment), this was done first for the 20,000 US Master’s H-1Bs, and then for the remaining number from among non-US-Master’s cases and US Master’s cases that were not selected in the first lottery.
In early 2019, the administration enacted a new regulation making two changes to the lottery process.
First, the process would be changed so that an employer would no longer need to complete and submit an entire H-1B petition just to be included in the lottery (only to have all of that work ignored and returned without review if not selected. Now, the employer would be able to enter the lottery using a simple online form and would only need to prepare and submit an entire petition if actually selected. However, the regulation had contemplated that the technology infrastructure for this new method would not yet be in place for the 2019/fiscal 2020 filing season, and so allowed for the existing process to remain in place – which is in fact what happened.
Second, the order in which the selection was done would be changed to provide a further advantage to those with US Master’s degrees – the selection for the general 65,000 cap would now be done first, and the pool would include all US Master’s candidates instead of only the ones not selected in the US Master’s lottery as before. Only the US Master’s candidates not selected in the general category would be competing for the additional 20,000 H-1Bs reserved for US Master’s candidates. This portion of the new regulation was implemented in 2019 for the Fiscal 2020 cap.
Of course, all of this requires that the foreign national has already received an offer of a job and that an agreement between foreign national and employer be in place for the employer to sponsor for an H-1B at least a month before this date (so that an attorney can be retained and all preparation on the case can be completed in advance of April 1). This often happens in situations where a recent Bachelor’s or Master’s program graduate has already begun working for an employer under Optional Practical Training employment authorization.
Frequently, however, the world doesn’t work this way – a foreign national without an H-1B currently might not have a secure job lined up with a willing employer in time to file early and obtain an available “new” H-1B under the cap. If this is the case, the next option would be to examine the possibility of obtaining some other non-immigrant visa. The viability of this option depends on the job offered, the background of the foreign national, and several other considerations.
This of course, should be reviewed in consultation with your attorney. The last resort would be for the foreign national to simply leave and wait abroad until an H-1B visa (or some other non-immigrant visa) becomes available – obviously, this will usually be the least desirable option.
The answer may depend on the foreign national’s current status.
For F-1 Students with employer’s applying for their initial H-1B while they work on Optional Practical Training (“OPT”), there is a “Cap-Gap” extension codified in regulation. This allows for extension of the OPT – both status and ability to work – up through September 30th with proof that an initial H-1B Petition has been filed requesting a change of status and is pending – so this will only apply where the petition has been selected under the H-1B cap lottery. If not selected in the lottery, there is no ability to obtain a cap-gap extension.
Extended Optional Practical Training employment authorization periods for those with degrees in “STEM” (Science, Technology, Engineering and Mathematics) fields may in some circumstances give people applying for an initial H-1B after attending school in the U.S. two or even three full fiscal-year cycles in which to attempt to get that H-1B, plus coverage up to the October 1 start date once selected. These extensions, even for those with STEM degrees, are limited to situations where the OPT candidate has a job offer from an employer using the E-Verify employment authorization verification system – a decision by the employer out of the control of the OPT foreign national. STEM extensions also require completion of a detailed training plan for the additional time.
For foreign nationals with some other non-immigrant status than F-1 OPT, there is no such special treatment. These individuals are obligated to either extend their current status, to change to another status (if possible), or leave the U.S. to await H-1B approval and obtain an H-1B stamp abroad for reentry to begin work on or after the new October 1 start date.
The H-1B cap is a 65,000 limit on how many new H-1Bs are granted every federal fiscal year. The federal fiscal year runs from October 1 of one year through September 30 of the following year. There is an additional 20,000 H-1B allotment in a separate cap, available only to foreign nationals who have graduated from U.S. universities with a Master’s or higher degree.
No – a number of these are reserved for beneficiaries from certain countries (Chile and Singapore) with which the U.S. has trade treaties. 6,800 are reserved for beneficiaries from these two countries and are designated as “H-1B1 visas,” leaving 58,200 available for everyone else.
No. There are several categories of H-1B which are not counted against the 65,000 cap or 20,00 US Master’s Cap, and petitions for these types of cases may be granted by U.S. Citizenship and Immigration Services even though this cap has been reached for the current year.
First, extensions or amendments of existing H-1Bs are not counted against the cap. Put another way, only the first H-1B for a foreign national is necessarily counted against the cap. If the person on an H-1B were to leave the U.S. for a full year and then apply for another H-1B, this could be treated as a new “first” H-1B and could be counted against the cap allowing a fresh six years in H-1B status). However, if the person had been approved for an H-1B within the last six years, they can elect to use the last cap selection and so not need to go through the lottery again – here, they will only be eligible for the remaining portion of the original six-year H-1B period.
Next, cases which may not strictly speaking be extensions or amendments but are new employment situations where the sponsored foreign national was approved for an H-1B under the cap within the last six years. Here, they only get the remainder of the original six years but need not be counted again against the cap. There are certain types of petitions which are specified by statute as not counting against the cap. Under this category are H-1Bs petitioned for by certain institutions of higher education – Universities, for instance – and certain affiliates (which collectively are deemed “cap-exempt” institutions), H-1Bs petitioned for by certain nonprofit or government research institutions (also deemed “cap-exempt”, institutions) and H-1Bs where the beneficiary foreign national is the recipient of a waiver of the J-1 two-year home residence requirement using the H-1B to perform services required under the conditions of this waiver.
Finally, a strange variation on the cap-exempt institution H-1B: an individual can have two H-1Bs for two different employers in place at the same time. This is known as having “concurrent H-1Bs,” and one is normally for part-time employment. Where an individual has a primary H-1B with a cap-exempt institution, that person can get a second, part-time “concurrent H-1B” for work with another employer even if that second employer is cap-subject. The second H-1B is only valid for so long as the cap-subject H-1B remains valid and in force (the concurrent H-1b for the cap-subject employer becomes invalid even the cap-exempt H-1`B expires, if the employee is terminated by the cap-exempt employer, etc. even if the second cap-subject H-1B hasn’t yet expired).