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The H-1B Cap

by Gregory Siskind, Esq

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.

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, 2008 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 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. 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 United 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.

    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 status of any J-1 nonimmigrant if the employer has timely filed an application for change of status to H-1B. USCIS also declined in recent years to exercise this discretion.

    When will the numbers in the new 20,000 “bonus” cap be filled and who qualifies?

    For the current fiscal year that began on October 1, 2006, USCIS reached the 20,000 cap on August 1, 2006. However, many believe the cap will be hit much earlier this year.

    To qualify in this bonus cap, applicants must have earned a US master’s or higher degree. Graduates of medical residency and fellowship programs do not qualify in this category.

    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 this year 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. Now that concurrent filing of I-140 and adjustment of status applications area 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 as of April 2007 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.

    About The Author

    Gregory Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.