Green Cards (Common)
National Interest Waivers
Professors & Researchers
Executives & Managers
PERM Labor Certification
Investors (EB-5 visas)
Family (Spouse, etc.)
Work Visas (Common)
O-1 Extraordinary Ability
TN Canadians & Mexicans
J-1 Visa Holders
Nurses & Physical Therapists
Frequently Asked Questions about the H-1B Cap
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):
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!
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.
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.
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.
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).
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.
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.
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.