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H Visa Cap - How Does It Affect You?
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The “H Visa Cap” question keeps popping into our minds, but what exactly is the “Cap?”

The cap refers to the annual numerical limitations set by Congress on the number of workers authorized to be admitted on different types of visas or authorized to change status if already in the United States. Here we will talk about the caps as they apply to the H visa category.

H1B Visa - [65,000]

US businesses utilize the H 1B program to employ foreign workers in specialty occupations that require a body of theoretical knowledge and/or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. 

Congress has limited the number of new individuals that can enter the US in the H 1B category to 65,000 per year. This 65,000 includes the 6,800 H 1B1 visas that have been carved out under the Free Trade Agreements entered into with Chile and Singapore.

While the H1B cap was reached within the first week of filing for several years, we have seen a reduction in the use of H1Bs since the economic downturn. The cap is still reached, but not in the first few days filing (that necessitated that USCIS setting up a lottery system). 

Not all H 1B petitions are covered under the H1B cap rules. Those not covered by the cap include “current workers” and certain aliens who will be employed at institutions of higher education or related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Petitions for current workers are petitions filed to:
  • extend the amount of time a current H 1B worker may remain in the United States;
  • change the terms of employment for current H 1B workers;
  • allow current H 1B workers to change employers; and
  • allow current H 1B workers to work concurrently in a second H 1B position.

Cap-Exempt H-1B Petitions:

In addition to the H-1B cases noted above that are not covered by the cap, the H-1B Visa Reform Act of 2004, established an exemption for the first 20,000 H-1B petitions filed on behalf of aliens who have earned a masters' or higher degrees from a US institution of higher education. Unfortunately, these like the regular H-1B petitions are used up quickly. Cap has been reached on April 30 2007, the last date USCIS has reported.

CASE SCENARIO
AB Corp wants to bring 3 of their highly skilled computer analysts to the US to work on a new application of their proprietary software. Unfortunately the decision was just made to do so and it appears that the H-1B cap will be reached shortly. One of the workers still has an valid H1B from when he was sent to the US a year and half ago, and one has a valid L-1B visa from when he was in the US setting up the parameters of this project. That leaves only one worker that needs a visa. He had an H1B visa but has been back in India for over 2 years. Is he subject to the cap, or can you get a new visa for him without having to worry about that.

Since he has been outside the US for over a year, and does not currently have a valid H1B visa he will be subject to the cap. You will have to get the petition ready quickly and get it filed to get in under the cap. If you can’t complete it in time, you will have to look at other options for him – possibly qualifying him as a specialized knowledge intracompany transferee (L1B).

H1B1 Visa - [6,800]

Of the 65,000 new H1B visas available, 6,800 visas are set aside during the fiscal year for the H1B1 program under the terms of the legislation implementing the US - Chile and US - Singapore Free Trade Agreements.

An H1B1 is a national of Chile or Singapore coming to the Unites States to work temporarily in a specialty occupation. The beneficiary must have a bachelor's degree relating to the job offer.

Unused visa numbers in this pool can be made available for regular H1B use with start dates beginning on October 1, for the following fiscal year. For instance USCIS added 5,800, the projected number of unused FY 2007 H1B1 Chile/Singapore visas to the FY 2008 H1B cap.

H2B Visa – [66,000]

The H2B visa category allows US employers in industries with peak load, seasonal or intermittent needs, and one-time needs, to augment their existing labor force with temporary workers. Typically, H2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

The H2B numerical limit set by Congress per fiscal year is 66,000, with 33,000 allocated to the first half of the fiscal year and 33 allocated to the second half of the year. For several years the Save Our Small and Seasonal Businesses Act of 2005 allowed the USCIS not count “returning workers” against the cap. Unfortunately, the “returning workers” provisions expired at the end of FY 2007 (September 30, 2007).

H3 Visa

The H3 nonimmigrant visa category is for aliens who are coming temporarily to the US to receive training (other than graduate medical education or training). The training may be provided by a business entity, academic, or vocational institute.

While the H3 category itself does not have any numerical limits there is a limit of 50 visas per fiscal year allocated to H3 aliens participating in special education training programs.

Relief on the horizon for the H Visa Cap?

With this being a mid-term election year, the economy still in recovery mode, and with immigration reform being such a hot button topic, it is unlikely that we will see any meaningful legislation addressing the H1B cap. Numerous bills have been introduced in the past several years, none of which made it very far in the legislative process. These have included the SKIL Act and the High-Tech Worker Relief Act. Both bills were aimed at reforming US visa programs for highly skilled foreign workers or providing temporary relief from the H1B cap, and both failed to get out of committee.

There is still much talk floating around Washington DC about comprehensive immigration reform, but with the legislative session winding down, and the fight congress has had this year on health care reform, nobody seems to be in the mood to bring a new bill to the table. We will have to wait and see where things go.

Conclusion:

With the H visa Caps playing such a large role in being able to bring employees to the US it is wise for employers to start planning early, and to consider other visa categories, including the L-1, J-1, E, O, and P visas.

See Success Stories to learn how VisaPro helped clients develop their visa strategy so they don't have to rely on the H-1B at all, and are still able to bring all the personnel to the US as they need. Our attorneys have the experience to review your particular facts and assist you in developing alternatives to the H-1B.

Contact VisaPro if you have any questions regarding work visas. Our experienced attorneys will be happy to assist you.

We cover the latest happenings on employment visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

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