The foreign workforce is significant to the U.S. labor market: not only does it fill the employment gap, but it expands job opportunities for all.
The U.S. labor market lacks certain professional employees, especially in Science, Technology, Engineering, and Math (STEM).
Fortunately, as economy continues to expand, many high-skilled professionals would like to work in the U.S., and each year, more employers seeking employees offer competitive job positions (and it is widely anticipated that the numbers of experienced employers and companies in need for skilled employees will increase).
Each year, many U.S. employers submit petitions for the H-1B cap subject to bring foreign employees to the company.
The number of available H-1B visas is limited per year, and since there is a high demand for H-1B visas on the market, the cap has been reached quickly.
If you just started to learn about the H1B visa process, you may encounter the term “H-1B Cap”. This article will explain why the H-1B has an annual cap, what is current annual cap, regular and master cap, and how USCIS calculates it.
What is The H-1B Program?
The H-1B program allows U.S. companies and employers to temporarily employ foreign workers. But, note that the H-1B cap is not intended for all occupations.
Instead, an H-1B visa holder must possess “the theoretical and practical application of a body of highly specialized knowledge,” as well as a bachelors degree or higher in the specific specialty or its equivalent.
Within H-1B specialty occupations, you may find architecture, engineering, mathematics, social and physical sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Variety of occupations also result in diverse types of H-1B cap:
- Regular cap
- U.S. Master’s cap
- Singapore-Chile Cap.
Who Qualifies for H-1B Cap?
H1B Regular cap or H1B Regular quota is the annual limit set for H1B petitions that U.S. employers file under regular quota per year. H1B regular quota filing petitions are those that meet the requirements of an H-1B visa.
The main difference is that there is no specific requirement to gain a U.S. master’s degree to be eligible for registration for the regular cap.
Under the regular cap, all the general H-1B requirements apply. To file registrations under regular cap, it is usually enough to have a bachelor’s degree and a job falling in specialized skills.
In some cases, a beneficiary (a potential foreign worker) does not need a degree if he or she is an experienced professional, whereas each year of education correlates the three years of experience.
What do I need to qualify for H-1B Cap?
- A bachelor’s degree / or an equivalent experience
- A job offers falling in specialized skills
H-1B Regular Cap Count
U.S. Citizen and Immigration Services USCIS utilizes historical data on approvals, denials, revocations, and other factors to estimate the potential number of approved visas to meet the H-1B cap for a fiscal year.
Currently, U.S. Congress has set an annual limit of 65,000 visas for H1B regular cap in a fiscal year.
It is important to highlight that the number of available visas includes 6,800 petitions set aside for Chile-Singapore workers according to the Free trade agreement.
H-1B Masters Cap- Who Qualifies?
Like a Regular cap, the H1B Masters cap or H1B Masters’s quota is also the annual limit set by U.S. Congress. To file an H1B petition under the U.S. Masters quota or Advanced Degree Quota, the applicant needs to have an Advanced Degree such as a Master’s or a higher degree, i.e., a Ph.D. from a U.S. University.
Also, anyone who has obtained an Associate or Bachelor’s degree from U.S. Universities does not qualify for this cap. Similarly, a person who has received a foreign (i.e., non-US) Master’s degree or higher also does NOT qualify for this.
So, what do I Need to Qualify for H-1B Master Cap:
- A master or higher degree obtained at the U.S. University.
H-1B Master’s or Advanced Degree Cap Count
As we mentioned above, U.S. Congress also set an annual limit for H1B Master’s cap.
Although there were some discussions in the past about exceeding the number of available H-1B visas for skilled workers, in 2022 (for the year 2023), 20,000 available H-1B petitions remain.
It means that USCIS can only issue up to 20,000 H1B visas for applicants who filed under the U.S. Master’s quota.
H-1B1 – Singapore – Chile Cap
As mentioned previously, under H1B Regular cap, U.S. Congress set aside 6,800 H-1B cap petitions for Singapore and Chile Countries.
The reason is Free Trade Agreement that the United States and these countries abide by.
It means that effective regular cap petitions quota left after allocation of available visas for foreigners from Singapore and Chile is as follows:
65,000 – 6,800 = 58,200
The important thing to note here is that any unused H1B1 slots will not be added to the regular cap of the current year.
If there are any unused visas from the previous year, the same number of visas would be added to the H1B Regular cap of the next fiscal year.
In general, the H-1B quota is heavily utilized, and the majority of the H1B1 Slots are added back to the regular quota.
According to the USCIS’s practice, the formula for counting H1B Regular Cap for 2023 is:
H-1B Regular Cap for 2023= Annual Cap for 2023 (i.e. 65,000) – H-1B1 Cap for 2023 (i.e. 6,800) + Unused H-1B1 numbers from 2022 (if any) + additional petitions USCIS accepted (buffer for denials, rejections, etc.)
Short Overview of The Caps
- The H-1B1 petitions that weren’t used in the previous year are added to the cap and consumed. So when USCIS publishes a cap count for the current year, that number already includes the unused H-1B1 number of the previous year.
- The H-1B1 category is heavily underutilized. According to the second question of the USCIS’s official statement, only 700 petitions were used in FY 2009 (which means 6,100 petitions were added to the FY-10 cap).
- According to USCIS, more H-1B petitions were accepted than available cap subject numbers, assuming some visa petitions will be denied, rejected, or withdrawn. USCIS selects about 12% to 15% more petitions than the annual cap to account for denials, withdrawals, etc.
- The petitions count for the current fiscal year only includes petitions that reached USCIS before the final receipt date (if already declared) and are either pending processing or approval. It doesn’t contain any petitions that have already been denied, rejected, or withdrawn on the cap publication date.
What are H-1B Cap-Exempt Petitions?
In general, if you are a U.S. employer submitting an H-1B petition for the first time for a potential worker, you need to go through the annual H-1B Cap and lottery as applicable.
Once your registration is selected in the H-1B lottery or counted towards the cap, you or your foreign employee do not have to go through the H-1B cap again or the H-1B lottery again, and these petitions are called Cap Exempt H-1B petitions.
Also, some classes of petitions fall under cap-exempt, like higher learning institutions, universities, etc.
Typical Cap-exempt Situations When Filing an H-1B
- H-1B Extensions extend the amount of time that a current H-1B worker may remain in the U.S.
- H-1B Amendment is used to change the terms of employment for current H-1B workers.
- H-1B Transfers allow current H-1B workers working pursuant to a qualified position to change employers.
- Concurrent H-1B allows current H-1B workers to work concurrently in a second H-1B position.
- H-1B Cap Exempt sponsors or employers like non-profit organizations and universities, non-profit research or governmental research organizations, non-profits related to higher education filing H1B petitions.
All the above-listed categories of H-1B petitions can be filed anytime during the year and are not cap subject to registrations during the initial filing period ( or the lottery) for the following fiscal year.
Will There Be A Lottery for H-1B 2023?
On January 28th, USCIS announced the exact date of the initial registration period opening for the upcoming year.
This year, USCIS starts accepting registrations on March 1, but you or your representative can create your account for registrations before March.
If USCIS receives enough registrations submitted by March 18 (during the first filing period), it will run the H-1B lottery on properly submitted electronic registrations.
Only petitioners of selected registrations in the lottery will be eligible to file an H-1B cap petition. USCIS will send selection notifications via user’s account page by March 31.
FY 2023 H-1B Cap Initial Registration Period
According to the USCIS Alert announced on January 28, important dates to follow in 2022 (in the first selection round for fiscal year 2023) are:
- February 21: If you don’t have myUSCIS account, you can create one to use it for registrations of eligible beneficiaries during the electronic registration process. To ensure on time filing you can start creating your page before registration period starts. Advance planning is essential, so make sure you have all necessary details before registration submission.
- March 1: USCIS begin accepting registrations at noon Eastern. By using MyUSCIS account, submit basic information for potential employees. Note that only one registration can be submitted per an eligible employee.
- March 18: The initial registration period closes at noon Eastern, no matter whether number of registrations exceed the cap subject earlier. Only complete H-1B cap petitions will be considered.
- March 31: If H-1B cap-subject is reached and there is more complete registrations filed after submission period, USCIS will conduct the lottery. After USCIS conducted a random selection process, it will issue a selection notice notifing each registrant about the results via their account page.
Electronic Registration Process
To submit an H-1B registration, a U.S. employer must first create a USCIS online account. Employers or representatives will use this page to submit registrations.
It is highly advisable to do this before March. Note that after you select the “I am an H-1B registrant” account type, you will not be able to add additional information until the initial registration period opens.
Experienced employers may not need an attorney to help them register potential employees.
Still, for others, it is good to know that the USCIS registration page allows representatives to create an account and register beneficiaries on behalf of U.S. employers. So if you think that you might need a lawyer, contact Herman Legal Group.
H-1B Electronic Registration Process Webinar
It is good to know that U.S. Citizenship and Immigration Services (USCIS) is holding a webinar on Thursday, Feb. 24, 2022, from 2 to 3 p.m. Eastern.
This is an opportunity for you to hear updates on the online account features for the FY 2023 H-1B Electronic Registration Process.
If you want to participate in this webinar, visit USCIS’s registration page, enter your email address, and select “Submit.”
Afterward, choose two more options, “Subscriber Preferences” and the “Questions” tab, where you can put your location, organization name, and organization type. Again, select “Submit.” You will receive a confirmation email through the provided address with more details on participating in the webinar.
If you already have some questions, you can send them to USCS in advance. USCIS receives questions via email email@example.com by Feb. 8 at noon Eastern. Put “H-1B Electronic Registration Process” in the subject line.
Registrations Submitted- What’s Next?
After the initial registration period if there are more than registrations required to reach the subject cap, USCIS will run the lottery for the fiscal year 2023 (that takes place after the initial registration period closes on March 18), and randomly select H1-B employees.
When new employees are eventually selected, employers will submit their petitions to USCIS for processing. USCIS intends to issue a selection notice to all selected registrants till March 18.
Paying the Fee and Filing Supporting Documents
Employers have to pay appropriate registration fees which is 10$ and submit supporting documentation.
The deadline for paying the fee and submitting additional documentation is usually 90 days, but USCIS may establish the deadline.
Follow the USCIS official page for up-to-date information or contact us if any concerns arise.
After USCIS selected your petition, your employee gets an H-1B visa, meaning that the beneficiary’s start date will be in October of the same year.
Will There Be Second Registration Period For FY 2023?
If there wasn’t a sufficient number of selected registrants, USCIS will decide to open the second round.
Additionally, it is possible that in the second filing period, H 1B petitions that weren’t previously selected may take the place of those who were previously selected but had their petition denied or did not submit their visa application.
For any further news on the filing process for H-1B cap petition, follow our blog to stay informed.
Do I Need A Lawyer To File H-1B Registration Form?
If you want to avoid any undesirable scenario and ensure on-time filing and proper form submission of your registration, you should consider hiring an immigration attorney who can lead you through the registrations and filing process.
Having and experienced immigration attorney will raise your chances to get your petition approved and make the whole process less stressful.
Richard Herman and his team of immigration lawyers can be your right hand if you want to file an H-1B petition.
Our team have extensive experience in providing services in the field of immigration law. We have helped numbers of clients from all around the globe to get immigrant and nonimmigrant visas and bring their families to the U.S.
Also, when we say that we speak your language, we really mean it- our dedicated team of lawyers speaks more than 12 different languages, so we can truly understand each client’s individual need. March is just around the corner, call us now and book your consultation.
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