The H-1B Cap refers to the annual numerical limit (cap) of new H-1B statuses/visas each fiscal year. These visas/statuses are reserved for jobs that typically require a bachelor’s degree or higher in specialty fields, such as IT, engineering, mathematics, physical sciences, business specialties, etc. There are currently 65,000 slots available for these highly coveted visas (the “general cap”). There are an additional 20,000 visas available for workers with a U.S. master’s degree or higher (“advanced degree exemption”).
Why is there an H-1B Cap?
The demand for H-1B visas to fill speciality occupations is high. To manage the influx of applications and potentially protect U.S. worker employment, Congress set an H-1B Cap in 1990. The specific number of H-1Bs available has fluctuated over the years, but the general program has remained the same.
Who is Not Subject to the H-1B Cap?
Instead of covering who is subject to the Cap, it is easier to highlight those who are exempt. These employers include:
Institutions of higher education
Nonprofit entities affiliated or related to an institution of higher education
Nonprofit research organizations
Government research organizations
How Does the H-1B Cap Work?
Because there is such high demand for H-1B visas/statuses, USCIS conducts a lottery to select H-1B petitions that it will accept for review and adjudication for the upcoming fiscal year. Typically with the help of an attorney, prospective employers first electronically register with USCIS for each foreign national worker they want to hire under the H-1B program within a two-week period in March. Employers provide basic information about themselves and the requested worker and pay a registration fee. USCIS then randomly selects registrations until the Cap is met. USCIS notifies employers and their legal representatives if their registration was selected via an online USCIS account.
If the registration was selected, employers - again typically with the help of an attorney - may file a complete H-1B petition with USCIS starting April 1. USCIS will then review and adjudicate the petition. If the petition is approved, the foreign national worker may start working for the employer in the position specified in the H-1B petition on October 1.
This is a simplified overview of a complex topic and process. We encourage you to contact our firm to learn more about the specifics of your situation. Use the Book Consult or Contact Us form to reach out and find out how we can assist.
Sources:
“H-1B Specialty Occupations.” USCIS, 18 July 2024, www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations. Accessed 14 Nov. 2024.
“H-1B Cap Season.” USCIS, 29 June 2024, www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season. Accessed 14 Nov. 2024.
“H-1B Electronic Registration Process.” USCIS, 5 Aug. 2024, www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process. Accessed 14 Nov. 2024.
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