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 Chile and Singapore. Numbers not used of that 6,800 (which will likely be several thousand) will be made available in the 45 day period beginning October 1st. Congress also has allocated an additional 20,000 H-1B visas for graduates of US masters programs or higher.
Who is actually subject to the cap?
Not every H-1B applicant is subject to the general cap. The cap 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.
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 (such as a physician who receives an H-1B for residency training with an exempt hospital and then seeks a job in private practice afterwards).
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 Singapore and Chile draw from a separate cap of 6,800 (5,400 for Singapore and 1,400 for Chile).
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.
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 the subsequent fiscal year. The earliest date a petitioner may file a petition requesting H-1B employment with an employment start date of October 1 would be the previous April 1.
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 theUnited States
- 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 Singapore and Chile consistent with Public Laws 108-77 and 108-78.
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 Singapore and Chile and graduates of US masters and doctoral programs will be counted against caps specifically set aside for those groups.
Note that beginning in January 2008, USCIS requires cap exempt cases to be filed at the USCIS California Service Center.
What is “Cap-Gap”?
Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.
Who qualifies for a Cap Gap Extension?
To qualify for the H-1B Cap-Gap Extensions: The student must be the beneficiary of an H-1B petition that
- has been filed in a timely manner;
- requests an employment start date of October 1 of the following fiscal year; and
- that requests a change of status.
In addition, the student must not have violated the terms or conditions of her/his F-1 status and must be on a period of post-completion OPT.
How does “Cap-Gap” Occur?
An employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change-of-status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap gap extension, and whose periods of authorized stay expires before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.
How does a student covered under the cap gap extension obtain proof of continuing status?
The student should go to their Designated School Officer (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap gap I-20 showing an extension until June 1st. If the student’s petitioning employer receives a notice of selection from USCIS, the student should return to his or her DSO with a copy of the receipt notice, if possible, for issuance of a new cap gap I-20 indicating the continued extension of status.
For more in-depth information about Cap-Gap visit USCIS’ FAQ.
What will happen if I am not exempt from the cap and my current status expires after the numbers run out?
In order to deal with the lack of H-1B visas, a number of alternate categories may be available including O-1 visas, TN visas for Canadians and Mexicans, E-1 and E-2 visas, L-1s and J-1 training programs. Many will look at pursuing graduate education in the US and then will be eligible for the bonus H-1B quota.
An option available to many will be filing for permanent residency. There are many work-related green card applications that can be filed without a labor certification. And the new PERM labor certification program means that employment authorization can be obtained much earlier. Where concurrent filing of I-140 and adjustment of status applications are available, it may be possible to secure an employment authorization document in a matter of a couple of months after the green card process is started. Furthermore, premium processing of I-140s is now available in several categories.
Note that green cards are backlogged for numerous categories and nationalities so a permanent residency strategy may not work for many.
We advise people subject to the cap looking for alternative strategies to consult early with their immigration lawyers.
Will an employer get a refund of the filing fees if it files a case claiming to be exempt from the H-1B cap and USCIS decides it is subject?
Under the March 2008 rule, USCIS will now deny the case and keep the filing fees rather than reject the case and return the fee. According to USCIS, this is because it is necessary for the agency to actually adjudicate the case to determine if it is subject to the cap.