Frequently Asked Questions about the H-1B Cap

• What are the H-1B Caps?
• When were the H-1B Caps reached in recent years?
• When will the H-1B Caps be reached this year?
• When is the earliest date that I can file my H-1B petition?
• Who do the H-1B Caps affect?
• I am a student in F-1 status, and I have job offers from a private company, a university, and a non-profit research organization.  Does the H-1B Cap affect me differently depending on which employer I choose?
• I have an H-1B that expires soon.  Do the H-1B Caps affect me?
• I am currently in H-1B visa status but considering a job with a different employer. Do the H-1B Caps affect me? 
• As an employer, what does the H-1B Caps mean to me?
• What are the other visa options after the H-1B Caps has been reached?
• The H-1B Cap is negatively affecting my business.  Is there anything that I can do?

What are the H-1B Caps?

U.S. immigration law imposes limits ("quotas" or "caps") on the number of H-1B visas issued in a given fiscal year. As described below, the cumulative total of H-1B visas (and H-1B visa exemptions) currently allowed every year is 85,000.

For many years, there was only one cap. It was applicable to all H-1B petitions. In the early 2000s, Congress has added a separate cap (i.e., additional visa numbers) for those who have earned an advanced degree from a U.S. academic institution. Around the same time, Congress also created a few per-country set-asides and some employer-based exemptions from the Caps.

The current H-1B Caps, set-asides, and exemptions look like this for Fiscal Year 2010 (i.e., from October 1, 2009 to September 30, 2010):

• Main Cap of 65,000 visas (with 6,800 visas set aside for nationals from Chile and Singapore). The main cap limits the number of H-1B visas to 65,000. Under terms of U.S.-Chile and U.S.-Singapore Free Trade Agreements, however, 6,800 of these visas (more than 10% of the world total) are set aside for nationals of Chile and Singapore. This leaves a total main cap for the rest of the world of only 58,200 visas. Fortunately, the law also provides that any unused Chile/Singapore numbers from each immediately preceding year will be reallocated back to the current H-1B cap. For example, unused numbers from Fiscal Year 2009 will be made available on October 1, 2009, the start of Fiscal Year 2010. The law authorizes USCIS to make such unused numbers available within the first 45 days of Fiscal Year 2010 to foreign nationals who had applied for such visas during Fiscal Year 2010. At that time, USCIS will announce how many Chile/Singapore numbers went unused last fiscal year and can be reallocated to this fiscal year.
• U.S. Advanced-degree Cap of 20,000 visas. In addition to the main cap of 65,000, an additional 20,000 visas are available to only those foreign nationals who have earned an advance degree from a U.S. university or other U.S. academic institution.
• Employer-based exemptions from the Caps. Applicable immigration law also exempts certain U.S. employers from the Caps. These employers still have to file H-1B petitions, but their petitions are not subject to the H-1B Caps and can be filed at any time. The categories of exempted employers include U.S. universities, university-affiliated nonprofit entities, and nonprofit or governmental research organizations.

When were the H-1B Caps reached in recent years?

For Fiscal Year 2008 and Fiscal Year 2009, U.S. Citizenship and Immigration Services (CIS) announced that it had already received enough H-1B petitions to meet the main 65,000 on the very first day! That is, the entire year’s main quota was immediately gone (except for the 6,800 set aside for Chile and Singapore).

The Advanced-degree Cap of 20,000 for Fiscal Year 2008 was reached on April 30, 2007 (i.e., in less than one month) and for Fiscal Year 2009 was reached in one day!

When will the H-1B Caps be reached this year?

Based on H-1B usage in recent years, it is very likely that the visa numbers and advanced-degree exemptions will run out on April 1, 2009.

When is the earliest date that I can file my new H-1B petition?

The earliest that non-exempt (i.e. "regular") H-1B petitions can be filed for Fiscal Year 2010 is April 1, 2009. Petitions filed on and after April 1, 2009, if approved, will be given start dates of October 1, 2009.

Who do the H-1B Cap affect?

The H-1B Cap only affects individuals who are seeking new H-1B status. This generally includes individuals currently in the U.S. in any status other than H-1B (such as F-1 students and B-1/B-2 visitors). It also includes individuals who are outside of the United States and have never held H-1B status. Finally, with some exceptions, the Caps also affect those who have previously held H-1B petitions, but have since been absent from the United States for more than one year.

The cap does not affect H-1B extensions, H-1B amendments, or H-1B changes of employers. The cap also does not affect positions at universities or affiliated nonprofit entities, or at nonprofit research organizations, or governmental research organizations.

I am a student in F-1 status, and I have job offers from a private company, a university, and a non-profit research organization. Do the H-1B Caps affect me differently depending on which employer I choose?

H-1B petitions by universities, university-affiliated nonprofit entities, and nonprofit or governmental research organizations are not limited by the H-1B cap.  If you chose to accept the offer from the university or nonprofit research organization, you may be able to change your status to H-1B and begin working before October 1, 2009.  If you chose to accept the offer from the private company, however, your employer would have to file shortly after April 1, 2009, and you would not be able to begin working in H-1B visa status until October 1, 2009.

I have an H-1B that expires soon. Do the H-1B Caps affect me?

The H-1B Caps do not limit extensions of stay for people currently in H-1B visa status, nor do the Caps limit H-1B changes of employers. Your employer can file an H-1B petition to extend your stay without worrying about the H-1B Caps, as long as you are eligible for additional H-1B time.

I am currently in H-1B visa status but thinking about taking a job with a different employer. Do the H-1B Caps affect me?

The H-1B Caps do not apply to petitions requesting a change of employer for individuals currently in H-1B visa status. The H-1B Caps also do not apply to H-1B petitions to change the terms of employment or to allow you to work concurrently in a second H-1B position (i.e., to allow you to work at two places at once).

What are the other visa options after the H-1B Caps have been reached?

Normally, if the Caps are reached, you are out of luck for employment in the upcoming fiscal year. Depending on your specific circumstances, however, you may be eligible for other working visas, such as E visa, L-1 visa, TN visa, J-1 visa, Q visa, O visa, P visa, R-1 visa, etc. If you miss the H-1B quotas for this year, you should consult competent immigration counsel about the specific visa options, if any, that may still work for you this year.

As an employer, what do the H-1B Caps mean to me? 

If you find qualified candidates for openings who do not currently have an H-1B, the candidate may not be able to begin working for you until October 1, 2009 or later.  There are some exceptions if the foreign worker qualifies for another type of work visa, or is a student with valid Optional Practical Training.

If you want your candidate to start H-1B employment with your organization on October 1, 2009, you should have the petition ready to be filed by April 1, 2009. If you wait until April 1 to get started, you may miss the opportunity to employ the candidate until the next fiscal year. That would be an 18-month wait instead of a 6-month wait.

The H-1B Caps are negatively affecting my business. Is there anything I can do about it?

If you are a U.S. company that needs H-1B employees and will be or have been hurt by the ultra-low H-1B Caps, please contact your local Congressperson.  It is essential that Congress hears from U.S. companies, such as yours, who are negatively impacted by the ultra-low H-1B quotas. Educating Congress about the negative impact of the ultra-low H-1B Caps on our economy may encourage Congress to raise the H-1B Caps to a more reasonable level.