Florida Immigration Attorneys

What you need to know about the H-1B Cap

H-1Bs are capped at 65,000 per fiscal year (October 1 through September 30) less free trade visas that are reserved for Chile and Singapore resulting in 58,200 H-1Bs. Plus an additional 20,000 for advanced degree specialty occupations. The cap is filled in the chronological order that visa petitions are filed with CIS.

H-1Bs that are Cap-Exempt are not counted against the 65,000 cap as follows:

1. J-1 physicians who have obtained a waiver pursuant to the State 30 program or federal program, and;

2. Beneficiaries of employment offers at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations;

a. Private employers may petition under this provision if the employee is to physically work at the institution of higher education or related or affiliated nonprofit and there is "nexus" between the work performed and the normal purpose of the nonprofit. To qualify as an affiliated or related nonprofit the employer must be:

i. Linked or in association with a higher education institute, through joint ownership or control; or

ii. run by a higher education institute; or

iii. attached to a higher education institute as a member, branch, cooperative, or subsidiary.

b. Nonprofit research organization that is principally engaged in basic or applied research.

c. U.S. Government research entity.

d. A school district petitioner if the position is part of collaboration between the school and an institute of higher education that is cap exempt.

e. H-1B employed with an exempt and nonexempt employer will not be counted toward the cap. However, if ceases to be employed in a cap-exempt position, an H-1B petition based upon the cap will be not cap exempt. CIS will give "deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education absent any significant change in circumstances or clear error". Applicants should provide proof of previous determinations such as:

i. copy of prior approval;

ii. CIS approval notice issued after June 6, 2006;

iii. documentation previously submitted supporting cap-exempt claim; and

iv. statement from petitioner attesting organization was previously approved to be cap-exempt.

However, if there has been a significant change or clear error in the prior adjudication, USCIS need not give deference. Significant change includes entity has reorganized and is now a for-profit entity; affiliation agreement has expired and is not automatically renewed; or new petition seeks cap-exemption based upon affiliation or relation to different institution. Clear error includes evidence: of affiliation with organization that is not an institution of higher education; or the prior approval was revoked.

3. Persons (up to 20,000) who possess a U.S.-earned master's or higher degree. Those above 20,000 are counted against the 65,000 cap

4. H-1Bs in CNMI and Guam until Dec. 31, 2014. CNMI uses same prevailing wage determination process as other H-1Bs.

5. CIS does not count against the cap, a person that has been counted within the past 6 years. If eligible for a new 6 years of H-1B status at the time the petition is filed they are counted. A person could be eligible for a new 6 years if was out of the country for one year or if the work was seasonal, intermittent, or less than 6 months per year.

6. H-4 Spouse and children.

7. Extensions.

8. Approved petitions found to be based on fraud or misrepresentation are restored to the numerical cap. A petition that is revoked for other reasons will be restored if it was revoked in the year it was approved.

Note: Chile receives a maximum of 1,400 H-1B1s and Singapore a maximum of 5,400 H-1B1s. To the degree these are used, they are reduced from the overall H-1B cap. If not used, they are available between Oct. 1 and Nov. 15 of the following FY.

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