Immigration Law Associates
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Understanding the H-1B caps

H-1B visas are capped at 65,000 per fiscal year, which begins on October 1 and runs through September 30. Within the 65,000 quota, 6,800 visas are reserved for nationals of Chile and Singapore. The 65,000 cap does not include 20,000 additional visas per year for persons who have earned a Master’s or higher degree from a U.S. institution of higher education.

Only “new employment” of an H-1B is counted under the cap. Within the normal 6 year maximum period for a person in H-1B status, extensions or transfers to a new position or employer are not counted. Dependent spouses and children are also not counted under the cap.

Foreign nationals with certain kinds of employers have H-1B visas available to them at all times. Positions with institutions of higher education or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations, are usually “cap exempt”. The New York City Public School System is the largest employer of cap-exempt H-1Bs.

Some private (for profit) employers may petition under this provision if their employees are also working in a cap exempt position as long as the work to be done is closely related to the normal purpose of the institution or nonprofit.

Annual Cycle
The quota for each fiscal year opens on or about April 1 of that year, for work beginning on October 1. When the quota is open (the cap has not been reached), USCIS will accept H-1B petitions. As the months progress, USCIS announces the number of visas remaining under the cap. Number of Days Before H-1B caps Reached

When the cap is exhausted, any H-1B petitions caught in transit are returned as soon as they reach USCIS. If an employer wishes to file for the same employee and position for the next fiscal year, a new H-1B petition is required.

From 2007 to 2009, employers raced to file their H-1B petitions before the cap was reached. In 2008 and 2009, demand for visas was so strong that the quota was reached within a few days of the April 1 opening. So many petitions were filed during those two days that a lottery had to be held to fairly allocate the available visas.

As the economy stagnated, the demand for temporary immigrant workers slowed dramatically. In fiscal years 2010, 2011 and 2012, the cap was not reached until December, January and November, respectively. In FY 2013, the gradual economic recovery led to increased demand for nonimmigrant workers and an exhaustion of the annual H-1B quota in mid-June.

Although no one expected a rush on H-1B visas for FY 2014 as was seen 2007-2009, USCIS announced a in early 2013 that there was a good chance the cap would be reached within the first 5 days of April. This prediction turned out to be true. To the dismay of many employers and hopeful foreign workers, there were so many applications registered during this 5-day period that a lottery for H-1B slots was required for the first time since 2009. H-1B applications will next re-open on April 1, 2014, for employment beginning no earlier than October 1, 2014.


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