The
ABC's of Immigration - The H-1B Cap
On October 1, 2003, the allotment
of H-1B visas provided annually by Congress dropped from 195,000 to 65,000. Out
of that number, 6,800 are reserved for the H-1B1 program for nationals of
This week, the H-1B cap for fiscal
year 2008 is to open up and USCIS is expected to announce possibly as early as
the first day that it has received enough applications to meet the 2008 cap
(which covers the fiscal year running from October 1, 2007to September 30,
2008. Numbers in the 20,000 pool are still available, but they are expected to
run out soon as well.
The next allotment of H-1B visas
in the 65,000 pool will open up on October 1, 2009 with applications being
accepted on April 1, 2008. Until then, it will be impossible to obtain new H-1B
visas for cap subject employees except for visas leftover from the H-1B1
Singapore/Chile program.
Who is actually subject to the
cap?
Not every H-1B applicant is
subject to the general cap. Visas will still be available for applicants
filing for amendments, extensions, and transfers unless they are
transferring from an exempt employer or exempt position and were not counted
towards the cap previously.
The cap also does not apply
to applicants filing H-1B visas through institutions of higher education
or their related or nonprofit entities as well as nonprofit research
organizations and government research organizations.
Physicians receiving waivers of
J-1 home residency requirements as a result of agreeing to serve in underserved
communities are exempt. Also, graduates of US masters and doctoral degree
programs draw numbers from a “bonus” allotment of 20,000 visas. As noted above,
nationals of
Must one be employed by the
institution by which he or she is claiming the H-1B cap?
Note that the statute states that
applicants who work AT such institutions are covered so individuals employed by
entities other than these institutions but who provide services at the
qualifying institution may be cap exempt.
In 2006, USCIS released a
memorandum discussing this question. The agency recognized that the law
permitted third party employers to obtain a cap exemption, but set a
requirement that the employment must “directly and predominantly” further the
essential purposes of the qualifying institution.
USCIS has stated that the burden
is on the petitioner to establish there is a logical nexus between the work
performed by the beneficiary and the normal primary or
essential work performed by the institution. They specifically give the example
of a physician employed by a medical group who serves patients at an exempt
university hospital.
What does it mean to be
“affiliated” or “related to” for purposes of the H-1B cap exemption?
USCIS in the same June 2006
memorandum noted above has taken the position that “affiliated” for cap
exemption purposes means the same thing as it does for fee exemption purposes
(affiliates of institutions of higher education are exempt from worker
retraining fees) even though the term is defined in the fee exemption statute
and not in the cap exemption statute.
The term in the fee exemption
context means “a nonprofit (including but not limited to hospitals and medical
or research institutions) that is connected or associated with an institution
of higher education, through shared ownership or control by the same board or
federation operated by an institution of higher education, or attached to an
institution of higher education as a member, branch, cooperative or subsidiary.”
This relatively restrictive
definition would seem to eliminate many employers. However,
“related to” has yet to be defined by USCIS.
How does USCIS allocate H-1B visas
for applications received on the day the cap is announced as having been hit?
USCIS’ policy is to hold a random
drawing to select the exact number of petitions from the day’s receipts needed
to meet the cap. USCIS announced that for FY2008, if it receives too many
applications in the first two days, all applications received in those two days
will be considered together in a random drawing.
All cases filed on that date or
later that are subject to the H-1B cap will be returned. Returned
petitions will be accompanied by the filing fee.
Can an applicant re-submit an H-1B
application?
Petitioners may re-submit their
petitions when H-1B visas become available for FY 2009. The earliest date
a petitioner may file a petition requesting FY 2009 H-1B employment with an
employment start date of October 1, 2008 would be April 1, 2008.
What will happen to the petitions
that do not count against the cap?
Petitions for current H-1B workers
normally do not count towards the congressionally mandated H-1B cap. USCIS will
continue to process petitions filed to:
· Extend the amount of time
a current H-1B worker may remain in the
· Change the terms of
employment for current H-1B workers
· Allow current H-1B workers
to change employers (unless the beneficiary is transferring from a cap exempt
employer to a cap subject employer and was never counted towards the cap- in
that case the beneficiary will be subject to the cap)
· Allow current H-1B workers
to work concurrently in a second H-1B position
USCIS will also continue to
process petitions for new H-1B employment filed by applicants who will be
employed at an institution of higher education or a related or affiliated
nonprofit entity, or at a nonprofit research organization or a governmental
research organization. USCIS will also continue to process H-1B petitions for
workers from
And doctors working in underserved
communities as a result of receiving a J-1 home residency requirement waiver
sponsored by a state or federal agency will also be exempt from the annual cap
even after they complete their service. Nationals of
What will happen to F and J visa
holders who are beneficiaries of an H-1B petition?
In the past, INS (now USCIS) had
safeguards in place for those with F and J visa status. According to 8
CFR Section 214.2 (f)(5)(vi), if it can be determined that all of the H-1B
visas will be used before the end of the current fiscal year, the director of
USCIS can extend the duration of status of any F-1 student if the employer has
timely filed an application for change of status to H-1B. However, in recent
years, USCIS has chosen not to exercise this discretion and no word has been
given on whether they will or will not do so in the future.
8 CFR Section 214.2(j)(1)(vi) has similar language regarding those in J status. If the USCIS director can determine that all of the H-1B visas will be used before the end of the current fiscal year, the director of USCIS may extend the duration of st