Everything You Need to Know About H1B Visa Caps
Posted by Rohit Mittal
So — you’re applying for an H1B visa and want to know what your chances are of getting one. Aside from following the procedure perfectly and getting in all of the required documents ahead of time, there is still a word that might scare some of you: Cap.
Before you freak out over the one word that you feel could impede on your chances of getting an H1B visa, we will give you a full overview on what the word means, and what kind of caps actually affect your race to H1B visa glory.
In this article, we will answer questions you have about what an H1B visa cap is and how it is determined, the petitions that are included and the ones that are not, and the different kinds of special caps like country-specific caps and even H1B advanced degree caps. We will also try to give you answers to the most commonly asked questions you couldn’t find on Wikipedia.
We’ll start with the basics first, and then work our way up to a better and more comprehensive understanding of what the H1B cap is.
Table of Contents
What does the word “Cap” in H1B Cap mean?
Believe it or not, the H1B cap is not the headgear you see Americans wearing at baseball games. In the case of the H1B visa, the H1B cap is the total number of H1B petitions that US Congress is allowed to approve for a fiscal year.
Three Different Kinds of Caps
There are three different kinds of cap we will review in this guide.
H1B Regular Cap
The first and most common cap is the Regular Cap.; This cap is also referred to simply as quota/non-advanced degree quota, or cap/non-advanced degree cap, and is the most basic cap. It is set to 65,000 petitions per fiscal year.
H1B Advanced Degree Cap
The next cap is the H1B Advanced Degree Cap, which is loosely referred to as a master’s quota, or master’s cap, or US master’s degree cap. This annual cap is set to 20,000 petitions per year.
Lastly, there are the special, country-specific caps, which are referred to as the Chile-Singapore Cap, or H1B1 Cap. These countries have a certain number of visas allocated to the people of Singapore and Chile. The annual cap for these citizens of these nations is 5,400 and 1,400 (respectively), for a total of 6,800 between the two nations.
Sometimes, caps are under review and subject to change depending on the type of administration the US government has in force. The policies an administration wants to implement can change dramatically with different types of governments.
For the time being (H1B fiscal year of 2018), there have been no changes to the regular quotas that are in effect. Although there was potential, under the Obama administration, for an increase of the regular H1B cap to 110,000 petitions per year, it does not seem likely to happen now, as Trump calls for a new H1B visa bill that appeals to “protectionist” immigration policies.
We will see how things continue in the future — but for now, nothing has changed.
Who can petition for an H1B Visa under the regular cap, and how is it calculated?
The regular cap is the general quota limit for anyone that files for an H1B visa petition. This cap, at its most basic level, encompasses all applicants adhering to the normal H1B application rule. In general, all petitions automatically fall under this quota cap, unless you find yourself in a specialized category, like an H1B advanced degree application.
Regular Cap Quote Formula
The equation to calculate the total for the regular quota cap, using XXXX for the current fiscal year Regular Cap quota, and YYYY for the year prior to the current fiscal year Regular Cap quota is:
H1B Regular Cap = Annual Cap for XXXX (i.e. 65,000) — H-1B1 Cap for XXXX (i.e. 6,800) + Unused H-1B1 numbers from Previous year YYYY + Additional petitions accepted by USCIS as Buffer for denials, rejections, etc.
In other words, this equation takes into account the extra petitions that sneak into the cap because of the H1B1’s that had been denied, rejected, withdrawn, or unused during the fiscal year.
Something important to keep in mind is that the unused H1B1 petitions (free trade agreement caps for Singapore and Chile) from the previous year are added to the regular H1B cap of the next year. Keep in mind, then — whatever number the United States Citizenship and Immigration Services (USCIS) publishes for the cap count already includes the unused H1B1 number from the previous year.
If you have any questions about how this works, you can find more information here on the USCIS website. This document also notes that those caps need to be used within the first 45 days of the new cap season. This is good news for people seeking regular H1B visas because normally the H1B1 category does not even come close to reaching its cap.
For instance, from the fiscal year of 2009, only 700 petitions were used from the H1B1 category. In turn, this added an extra 6,100 (i.e. 6,800–700) petitions to the fiscal year of 2010. That same year, the regular H1B cap was reached within the first few days after USCIS opened for petitions.
This shows how much higher the demand is for Regular H1B caps than they are for specialized caps like the H1B1 cap, or even the H1B Advanced Degree cap. We hope the Chileans and Singaporeans continue to underutilize their H1B1 visas so that it leaves more for the rest of us.
What is the H1B Advanced Degree Cap, and what are the qualifications?
This cap is for anyone who has received a U.S. Master’s degree or higher. It is important to note that someone who has obtained an equivalent degree outside of the U.S. does not qualify for this cap. In other words, the degree must have been obtained inside of the United States.
The H1B Advanced Degree (master’s) cap is set to 20,000 petitions.
The USCIS normally accepts more H1B petitions than the cap allows because they assume that petitions will be denied, rejected, or withdrawn. However, we have no way of knowing how they calculate this because the numbers are not published. You are more than welcomes to check this out on the official USCIS page, here.
Finally, if you want to know where all the numbers come from, the number of petitions shown by the USCIS for the current fiscal year only includes petitions that reached USCIS prior to the final date of reception (which needs to be declared). The count also includes petitions that are either pending, processing, or have been approved. The count does not include any petitions that have already been denied, rejected, or withdrawn on the cap publication date.
What happens after the H1B Advanced Degree Cap is reached, but the Regular Cap is still open?
The advanced degree cap is much smaller than the regular H1B cap.
So what happens if the H1B advanced degree cap is reached and there are still petitions left for advanced degrees? Unfortunately for those pursuing the regular H1B, the ones in the advanced degree cap will then take up spots that were reserved for the regular H1B cap.
In the past, you could see an exponential increase in the regular cap because the advanced degree cap was reached and those petitions were thrown together in the regular cap lottery. This effectively minimizes the number of spots for actual regular H1B petitions.
The USCIS and the Cap: The Process Myth
This process is still a bit of a myth for all those who attempt to comprehend it. The general consensus for the H1B petition process — and the way most think it works — is like this:
Let us assume there are 5,800 unused H-1B1 numbers from the previous year, adding an extra 5,800 to next year’s cap. This leaves the Regular Cap at 64,000, excluding any numbers that were set-aside in the future for all of the petitions that did not make it through.
Then, the USCIS determines the historical petition rate that does not make it through, and use that to calculate the actual cap of the year. With the historical rate, the cap is set at plus or minus 5% within the stated amount, including the extra petitions that squeeze into the cap.
All in all, this is then the range the USCIS probably looks at to determine the number of petitions they will accept, and once they reach the number in that range, they close the cap. We do not know the number they choose, or how they determine it. However, we do know that this way keeps them from having to use precise numbers for the cap.
It is also important to take into account that if the cap closes and there could have been more petitions, the USCIS will not re-open it again. However, this has never happened.
Another peculiar thing you will see about the cap published by the USCIS is that they only show petition numbers in the hundreds of thousands. That means hundreds of petitions might not even be shown in the published cap amount because they might choose to publish the number 21,000 instead of 21,300, or any other such variation.
We try as hard as possible to be precise, but the USCIS still leaves some things a mystery. Our assumptions are just that they will always round the number to the closest hundred, and that they don’t stop granting H1B visas until they reach the hundredth number of a quota.
How Does the H1B Lottery Work?
The USCIS does not like to use the word lottery when referring to this part of their immigration process, because it makes it sound too much like someone trying to win a game of blackjack at a table in Las Vegas. They prefer to use the term “random selection,” but it is generally referred to by most as a lottery.
First and foremost, for every filing season, if the cap is reached within the first 5 days, the USCIS system puts all of those petitions under random selection. The computer-based, random selection is conducted for the H1B Advanced Degree Cap, and then those that don’t make it get thrown into the lottery under the Regular Cap. With the new consolidated number, a new lottery is conducted.
There is a different set of procedures for when the cap is reached outside of the first 5 days of the new filing season. When this happens, the USCIS determines if they have received enough petitions, and then close of the date for receiving petitions once that determined number is reached. If they receive just enough petitions, then no random selection is conducted. However, if the number does go over (which is generally the case), the cap is subject to a random selection.
The Exception to the Rule: H1B Cap-Exempt Petitions
Cap-exempt petitions are petitions that fall outside the regular quotas for those pursuing H1B visas. The most common cases are the unlimited H1B visas that certain employers, like non-profits, hospitals, and universities are allowed to give.
That is why, even though the H1B cap is set to about 80,000, H1B visas issuances can easily reach up to 100,000+ each year, depending on certain roll over or cap-exempt situations. For instance, excluded from the 65,000 allowances are all of the H1B non-immigrants who work at (but not directly for) universities, nonprofit research facilities associated with universities, and government research facilities. Universities and other certain entities can employ an unlimited number of foreign workers that qualify for the H1B visa, making them completely cap-exempt as they sponsor H1B visas.
University and Entity Requirements for Sponsoring H1B (Cap-Exempt) Visas
In order for universities and certain entities to sponsor this visa, they must show that:
- The majority of the workers’ duties will be performed at the institution
- The job duties further the essential purpose, mission objectives, or functions of the institution, organization or entity.
Other cases for cap-exempt petitions include when you extend the amount of time for your current H1B visa in the United States, also referred to as an H1B extension. Another case is when the terms of employment for your current H1B visa have changed, also referred to as an H1 Amendment. Then you have the H1 transfer, which has to do with changes in employment (for current H1B workers looking to change their employers), and the H1 Concurrent Case, which is made for workers looking for an H1B visa under a second position.
The petitions falling in the cap-exempt category can be filed anytime during the year, and are not subject to the October 1st start date or the April 1st filing date.
Wrapping it all up…
This article went over almost absolutely everything you need to know about the H1B Cap and how it works: from the different types of quotas under the different kinds of H1B Caps to the way the cap is calculated and how the USCIS H1B immigration process works.
Turn your H1B documents in on time to make it within the filing dates so that you don’t miss out on your chances at winning the H1B lottery! Although “random selection” is the official term, “lottery” is just the accepted term.
We hope this has informed you of annual H1B Cap requirements, deadlines, and calculations. If there is anything in here you feel is missing and you feel should be included, please let us know in the comments section below! It will help others as they pursue their H1B visa! We also would enjoy anecdotes or stories about your H1B journey, so let us know about those as well. Good luck with your race to H1B glory, and remember to come back for more resources and information!