Nuances of H-1B Annual Limits
H-1B nonimmigrant visa is one of the most popular and most wanted visas for professional employment in the US. The current law limits to 65,000 the number of foreign workers who may be issued H-1B visa per year. As the beginning of the fiscal year (October 1) the visas are made available, and the petitioners are permitted to file H-1B visa petitions 6 months on advance; i.e. on April 1 of the preceding fiscal year. The demand for this visa for past recent years exceeded this number, so the USCIS had to conduct the lottery to select the petitions for adjudicating. Please visit https://partovilawllc.com/h-1b-visas/ to check the general eligibility criteria for H-1B visa.
Generally speaking, the cap applies only to foreign nationals seeking H-1B classification for the first time. It does not apply to:
- H-1B beneficiaries who were already subject to the H-1B quota within the past six years and who have not exhausted their full six years of H-1B status. Accordingly, H-1B amended petitions, petitions for extension, and concurrent petitions and transfer petitions filed a new employer are not subject to the annual quotas.
- Physicians who have received a waiver of the two-year home-residency requirement for J-1 visa holders based on work in a health professional shortage area or medically underserved area;
Certain categories of employers are also exempted from the H-1B cap and according to current law, institutions of higher education (colleges, universities) or related or affiliated nonprofit entities, or nonprofit research organizations or governmental research organizations can file H-1B petitions to hire foreign workers that are not subject to numerical cap. Please note that H-1B beneficiaries who want to transfer from cap exempt employer to employer who does not have such status, will be subject to the cap.
The H-1B Visa Reform Act of 2004 provided for exemptions from the H-1B cap for up to 20,000 foreign nationals who graduated from US institutions of higher education with Master’s or higher degrees. Holders of U.S. Masters degrees are first counted against the quota of 20,000, and then after that quota runs out, they are counted against the regular quota, which basically give them two separate opportunities to be selected in H-1B lottery.
It is important to remember that differently than in regular cap cases, the field of study is not relevant for Master’s quota purposes so foreign national’s US degree does not need to be in the area of proposed employment. For example, if a foreign national earned a Bachelor's degree in Computer Science, and a U.S. Master's Degree in Aeronautics, he or she could apply for an H-1B for a Software Engineer position, and still rely on the unrelated, U.S. Master's degree in Aeronautics for quota purposes.
INA 214(g)(5)(C) provides that a Master’s cap exemption is reserved for an individual who "has earned a master's or higher degree from a United States institution of higher education as defined in section 101(a) of the Higher Education Act of 1965”. This section contains two very important provisions that define eligibility for master’s quota. First, the institution that granted a degree must be a public or other nonprofit institution; second, it must be accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association.
H-1B candidates should keep in mind that not all US institutions of higher educations meet the above requirements. There are many private schools for profit offering Master’s program, like for example, in Virginia, Strayer University or University of the Potomac but graduates of such program would not be eligible for H-1B Master’s cap filing. There are also schools that are missing the proper accreditation. On May 23, 2017, the USCIS issued a memorandum clarifying that in order to qualify for an H-1B numerical cap exemption based upon a Master’s or higher degree, the conferring institution must have qualified as a “US institution of higher education” at the time the beneficiary’s degree was earned. If the beneficiary received the degree while the school has not yet been granted accreditation or pre-accreditation status, H-1B petition filed under Master’s quota would be denied even if the school was accredited at the time of H-1B adjudication. On the other hand, if the school loses the accreditation after the student earned his/her degree, it would not impact the applicant’s eligibility for the Master’s cap.
It the Master’s cap petition was denied because the exemption requirements were not met, the beneficiary cannot not be counted towards the regular cap. In other words, H-1B petitioners cannot claim eligibility under alternative grounds, and the USCIS will not consider eligibility under the regular cap after first petition’s denial.
To sum up, it is critical to determine foreign national’s eligibility for filing H-1B under Master’s cap in advance. If the beneficiary does not meet above mentioned requirements, the petition should be filed under the regular cap.
This article is intended solely for information purposes and should in no way be construed as legal advice. If you have any questions or are unclear on any of the subject matters addressed or discussed in this article, please consult a licensed legal professional.