H-1B Cap FAQ

Q:What is the H-1B Cap?

A: 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.

Q: Are all 65,000 allowable H-1Bs under the main H-1B cap available to any eligible petitioner and beneficiary who apply?

A: No - a respectable 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, leaving 58,200 available for everyone else.

Q: Are all H-1Bs counted against the cap?

A: No. There are several categories of H-1B which are not counted against the 65,000 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 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 would be treated as a new "first" H-1B and would be counted against the cap since it would allow a fresh six years in H-1B status).

Next, there are 20,000 additional H-1Bs, above and beyond the original 65,000, which are available only for foreign national beneficiaries who have attained a Master's degree from a U.S. school. Only individuals with a Masters degree from a U.S. institution of higher education are eligible, and after the 20,000 are used for a year all subsequent applications by foreign nationals with Master's degrees must come under the 65,000 cap.

Finally, there are 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, H-1Bs petitioned for by certain nonprofit or government research 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.

Q: What steps can I take or what strategy can I follow to avoid the cap and obtain a new H-1B visa?

A: 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 file as early as possible 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 year's H-1B cap is April 1.

Of course, 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 job 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 nonimmigrant 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 nonimmigrant visa) becomes available - obviously, this will usually be the least desirable option.

Q: What if no H-1Bs are available until the next fiscal year begins on October 1, but my current status expires before this date?

A: The answer may depend on the foreign national's current status. In years past, U.S. Citizenship and Immigration Services had sometimes (but not always) produced guidance specifically for F-1 Students and J-1 Exchange Visitors - both of which do not have finite expiration dates. This guidance has said that foreign nationals with F-1 or J-1 status may remain in the U.S. until October 1 when the new H-1B would begin validity (but not work in the interim past any approved period of employment authorization).

Now, extended Optional Practical Training employment authorization periods for those in certain fields may give those applying for an initial H-1B after attending school in the U.S. two full fiscal-year cycles in which to attempt to get that H-1B, plus coverage up to the October 1 start date.

For foreign nationals with some other nonimmigrant status, there has never been any such special treatment. These individuals are obligated to either extend their current status or change to another status (if possible), or leave the U.S. to obtain an H-1B stamp abroad and re-enter for the new October 1 start date.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.