What exactly is a “cap” in relation to the H family of US work visas?
For a variety of nonimmigrant and immigrant visas, Congress has set limits on the number of visas that can be distributed in a given fiscal year (which begins on October 1 and ends on September 30, the next year). The annual quota or “cap” refers to these annual numerical limitations. In this article, we’ll talk about the cap placed on the H family of work visas that include the H-1B, H-2B and the H-3.
1. H-1B Visa Cap – [65,000]
The most well-known cap is the H-1B Visa Cap. US businesses utilize the H1B program to employ foreign workers in specialty occupations, i.e. jobs that require a body of theoretical knowledge and/or technical expertise in specialized fields and the attainment of at least a bachelor’s degree in specific field. Examples include scientists, doctors, accountants and IT professionals.
DID YOU KNOW
The 65,000 H-1B Visa cap includes 6,800 H1B1 visas that have been carved out under the Free Trade Agreements entered into with Chile and Singapore. The 6,800 cap for H-1B1 Visas has never been exhausted and is a great visa option for those from Chile and Singapore.
Unused visa numbers in this pool can be made available for regular H-1B use with start dates beginning on October 1, for the following fiscal year.
The H-1B Cap is 65,000 per year. The popularity of the H-1B program has resulted in H-1B Visa Cap being reached within the first week of filing. In fact, USCIS receives so many petitions in that first week, they have to conduct a “lottery” to determine which petitions will be adjudicated.
Not all H-1B petitions are subject to the cap. Those not covered by the cap include “current H-1B workers” who have been previously counted in the cap, and workers who will be employed at institutions of higher education, or related nonprofit entities, or at nonprofit research organizations or governmental research organizations. Petitions for current H-1B 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 with a 2nd employer.
2. H-1B Visa Master’s Cap – [20,000]
When USCIS begins accepting H-1B petitions for the following fiscal year, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a master’s degree or higher from a qualifying US institution of higher education are exempt from the regular H-1B Cap. Unfortunately, like the regular H-1B Cap, H-1B Master’s Cap also gets used up within the first week. Petitions that do not make it into the Master’s Cap are sent into the regular H-1B Cap pool.
My 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 a valid H-1B 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 H-1B visa but has been back in India for over 2 years. Is he subject to the cap or is he cap exempt?
The third employee should also be cap exempt as long as he has not exhausted the 6 years of maximum H-1B time when he was last in the US. If he has exhausted the 6 years, or does not have enough time remaining to complete the job, the employer will have to get an H-1B petition ready quickly and get it filed in the H-1B Visa Cap (as he has been outside the US for over 1 year, he is eligible to apply in the H-1B cap again). If the employer can’t file in time, they may have to look at the L-1B option.
3. The H-2B Visa Cap – [66,000]
The H-2B visa category allows US employers in industries with peak load, seasonal, intermittent or one-time needs to augment their existing labor force with temporary non-agricultural workers. Typically, H-2B workers fill labor needs in occupations such as resort/hospitality services, construction, landscaping, lumber, manufacturing, and food service/processing.
The H-2B cap is 66,000 per year, with 33,000 allocated to the first half of the fiscal year and 33,000 allocated to the second half of the year. For the past several years, the cap has been reached in both halves of the fiscal year. Unlike in the H-1B cap, there is no lottery once the cap is reached.
The returning workers are considered exempt from the H-2B cap.
DID YOU KNOW
The pool of applicants who can apply for the H-2B is further limited by the fact that only nationals of certain countries, as announced by USCIS before each fiscal year, are eligible for the H-2B. Countries that are not generally on the list include India and China.
4. The H-3 Visa Cap For Special Education Trainees
The H-3 Trainee 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. A subcategory is the H-3 Special Education Exchange Visitor for those who will receive education and training in educating children with special needs.
The H-3 Visa Cap for the Special Education Exchange Visitor program is 50 per year. There is no numerical cap for all other H-3 trainees.
The numerical cap for the H Visas play a large role in being able to bring employees to the US. Hence, employers must plan early and strategically so that they can maximize their chances of bringing in the required foreign employees. Employers also need to be ready to consider alternative options, including the L-1, J-1, E-2, O-1 and P-1 visas.
Check out our Success Stories to learn how VisaPro helped clients develop their visa strategies so they didn’t have to rely on only the H-1B visa, and are still able to hire all the necessary foreign personnel.
Our attorneys have the experience to help you create a success story of your own. To evaluate your specific situation Schedule A Free Immigration Lawyer Consultation Today >>
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