The Numerical Limitation: The "H-1B Cap"

The annual limitation on the number of H-1B visas is known as "the H-1B Cap", and the vast majority of new H-1B cases are subject to it.  The H-1B Cap works on a Fiscal Year basis, and the Fiscal Year runs from October 1 to September 30.  Once the Cap has been reached, no more H-1B petitions will be accepted until it is time to apply for the next Fiscal Year. 

There is now an online registration process, which takes place during March, in which the information of prospective H-1B applicants is inputted into a database with a $215 submission fee through an online filing account.  From this database of registrations, a lottery is conducted if more people apply under the H-1B Cap than there are available visas.  Notifications of selected applicants is provided through the online account around the end of March, and H-1B Cap petitions can be filed from April 1 to June 30. 

Constituent Parts of the H-1B Cap

Please note that there are 58,200 H-1Bs available each year to those who possess at least a bachelor's degree or its equivalent.  An additional 20,000 H-1Bs also are available to those who possess at least a master's degree from a U.S. institution of higher education that is related to their prospective H-1B employment.  Finally, 6,800 H-1B1 visas are available each year for Chilean and Singaporean citizens under the Free Trade Agreements that the United States has signed with these countries. 

H-1B Cap Exemptions

Fortunately, not all H-1B petitions are subject to the H-1B Cap.  Foreign national workers who are not subject to the H-1B Cap can apply for, and obtain, employment authorization in H-1B status at any time of the year without waiting for the next fiscal year's allocation of new H-1Bs to become available.

The H-1B Cap does not apply to those foreign national workers who will be working for a non profit research organization, a government research organization, or a non profit organization affiliated or related to an institution of higher education. 

Furthermore, the H-1B Cap does not apply to those foreign national workers who have already been admitted to the United States in H-1B status who are applying for: (1) an H-1B status renewal with their existing employer; (2) an H-1B transfers to a new sponsoring H-1B employer; (3) petitions for additional, concurrent H-1B employment with a second or third employer (i.e., further H-1B employment in addition to the authorized H-1B employment granted to the original sponsoring employer); or (4) where an amended petition has been filed.

Disclaimer:  The information provided by this website is general in nature.  Viewing this website and acting upon its content does not lead to the creation of an attorney-client relationship absent a signed retainer agreement with an attorney to that effect, nor does it imply that Mr. Dutton has engaged in the unauthorized practice of law in any jurisdiction.