What Does H1B Annual Cap Mean?
The H1B annual cap simply refers to a quota or limit that Congress has placed on the amount of H1B visas the United States Citizenship and Immigration Services (USCIS) may issue each year.
What is the H1B Annual Cap and How is it Calculated?
The United States government limits the number of H1B visas issued each year to 65,000. H1B applicants who have earned an advanced degree equivalent to a U.S. master’s degree or higher are exempted from this cap. However, those with advanced degrees are subject to their own annual cap of 20,000. Thus, the total number of H1B visas is in fact 85,000; but, keep in mind that the advanced degree H1B cap is calculated separately.
Additionally, 6,800 of the 65,000 visa-cap are reserved specifically for the H1B1 visa. This is also known as the Chile-Singapore cap because the H1B1 visa is specifically for nonimmigrant workers in specialty occupations from Chile and Singapore. Among the 6,800 visas annually allocated for the H1B1 visa, 1,400 are available for nationals of Chile and 5,400 are allocated for nationals of Singapore. Unlike the regular H1B program, the H1B1 visa is only valid for one year, however, and may only be obtained twice by a nonimmigrant worker in one year increments.
If there are any unused H1B1 visas remaining at the end of the selection process, those unused visas will be rolled over into the next year and added to the H1B cap for that year. This means there can be more than 65,000 H1B visas available in a given year. For example, if only 1,000 of the 6,800 H1B1 visas are used in one year, then the 5,800 (6,800-1,000) unused H1B1 visas will be converted into H1B visas for the following year, increasing the regular, non-advanced degree H1B cap from 65,000 to 70,800 (65,000 + 5,800) for that following year.
Is Anyone Exempt from the H1B Cap?
Yes, there are some exemptions.
Applicants seeking an H1B visa to perform labor or services in the Commonwealth of the Northern Mariana Islands and Guam may be exempt from the H1B cap if their employers file the petition before December 31, 2029.
Additionally, the USCIS exempts certain other employers and employees from the cap.
Employers exempted from the cap include:
- higher education institutions
- non-profit organizations associated with higher education institutions
- non-profit research organizations or government research organizations
- any for-profit company that seeks to hire a specialty employee to provide services to an institution or organization mentioned above.
Employees exempted from the cap include:
- individuals who have previously been granted exemption to the cap.
An employer may also file a cap-exempt H1B petition for an employee if the employee previously held H1B status in the United States and the employee has not used his or her six years of status. The petition would cover the remaining time the employee is allowed in the U.S. An individual must file a petition subject to the cap if he or she has been out of the U.S. for 1 year.
Employees who gain different employment by transferring from one employer to another may be exempt from the cap, depending on the cap-exempt status of the employee, the employer, and the new employer.
How Does the USCIS Enforce the H1B Visa Cap?
The USCIS effectively limits the amount of H1B visas issued each year by conducting a lottery where applicants are randomly selected to petition for the H1B visa. Thus, obtaining a H1B visa ultimately depends on successful selection through this process.
In order to be entered into the H1B lottery, petitioners for the H1B visa must register with the United States Citizenship and Immigration Services (USCIS) by creating an account and following all the necessary steps.
The USCIS will randomly select among those who register for the lottery. Those selected in the lottery can then petition for an H1B visa. Selection in the lottery does not guarantee issuance of an H1B visa. Selected applicants must prove their eligibility for the H1B visa in the petition submission.
An initial registration period is open each year for a total of 14 days, usually sometime in March. After the registration period closes, registered petitioners or representatives will be included in the H1B selection lottery. The USCIS will randomly select among the registered petitioners or representatives until the annual cap is met.
The initial registration period is generally around 14 days long in the month of March each year. For example, the initial registration period for 2022 begins on March 1st; however, accounts can begin to be created on February 21st, before registration officially opens. The initial registration period ends March 18th, 2022.
Below is the full 2022 registration period timeline:
- February 21st: Petitioners and registrants can start creating H1B registrant accounts at 12pm U.S. eastern standard time.
- March 1st: H1B registration period opens at 12pm U.S. eastern standard time.
- March 18th: H1B registration period closes at 12pm U.S. eastern standard time.
- March 31st: The USCIS will notify selected registrants
- April 1st: Selected registrants may file their petitions on this date.
The USCIS may open additional petition filing periods in 2022 if there are remaining unused H1B visas after the initial lottery selection. For example, remaining unused visas will be available within the annual cap if registrants selected in previous periods failed to file a petition for the H1B after being selected or if their petition was ultimately not approved.
In 2021, the USCIS had an unexpected three filing periods. So, registrants should continue monitoring their selection status throughout the year and keep an eye out for USCIS updates about additional filing periods.
Generally, after the filing period for selected registrants concludes, the USCIS will determine whether the H1B cap has been met. The USCIS may select additional registrants and open additional filing periods until the cap is met. There is no precise amount of filing periods or “rounds” the USCIS will conduct in a given year. The amount of filing periods depends on the availability of unused H1B visas under the annual cap. For example, in 2021, the USCIS had an unexpected total of three filing periods.
What Happens if an Applicant is Selected in the Lottery?
As mentioned, H1B petitions can only be submitted by individuals who are selected through the lottery. Selected registrants will file Form I-129, Petition for Nonimmigrant Worker with the USCIS. Registrants who are selected in the lottery will receive a Registration Selection Notice, which shows the specific filing period and filing location for their H1B petition. The USCIS website will otherwise provide this information in the event the registration requirement is suspended.
Registrants must wait until six (6) months from the employment start date requested for the H1B applicant to file their H1B petition. USCIS will not accept petitions submitted over six (6) months from the employment start date. Furthermore, both H1B cap petition and advanced degree exemption petition must include an employment start date that is October 1st, 2022 or later. The petition must include such a date or it will be rejected or denied. Non-specific employment start dates, such as “as soon as possible” will also be rejected.
