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H-1B Cap

What is H-1B Cap?

The Immigration Act of 1990 imposed an annual numerical limitation on new admissions in the H-1B category.  Due to this H1B numerical limitation (a.k.a. H-1B cap), an H1B number must be available at the time a new cap-subjected H1B petition is adjudicated.  Generally, there are three major types of H1B visas and each of them are subjected to different H1B numbers or H-1B cap.

H-1B Regular Cap

Each year Congress will make available an annual limit on the number of H-1B visa admissions.  Such annual H-1B numerical limitation (H-1B cap) is set at 65,000 with 6,800 ( approx. 10.5%) H-1B being set aside for professionals from Chile and Singapore under the Free Trade Agreements (FTAs) with these countries.  The overall H-1B numbers are 58,200 in the standard H-1B pool, plus any unused H-1B visas from a prior fiscal year.

H-1B Advanced Degree Cap

An exemption from the H-1B regular cap of 65,000 is the H-1B advanced degree cap.  This cap exempted H-1B, exempt 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. As long as the 20,000 slots are still available, applicants with a U.S. advanced degree is able to make use of this cap for their H-1B filings.  After the 20,000 slots are filled, the immigration will apply the advanced degree petitions against the standard annual cap of 65,000.

 H-1B Cap Exemption

Not all H1B visas are cap subject as there are some that are exempted from the the cap without regard to the number of such H1B cases that are filed. These H-1B cap exempted categories may be filed at any time during the fiscal year.  These included:

  1.  Institutions of higher education;
  2. Related or affiliated not-for-profit entities;
  3. Not-for-profit research organizations or governmental research organizations.

If an H-1B petition is accepted and ultimately approved, that beneficiary is generally entitled to 6 years of H-1b time inside the United States.  H-1B petitions are employer specific.  It is often permissible for a H-1b beneficiary to change employers, provided a new H-1B employer files a new H-1B petition that is eventually approved.

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