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Frequently Asked Questions |
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What is the H-1B cap?
FREQUENTLY ASKED QUESTIONS (FAQs) ABOUT THE H-1B CAP
What is the H-1B cap? The H-1B visa classification is used for the employment of foreign professionals to temporarily fill “specialty occupations,” jobs requiring a bachelor's degree or the equivalent in a specialized academic field. H-1B workers include engineers, teachers, researchers, and medical and computer professionals. There is currently in effect a statutory limit of 65,000 new H-1B classifications that can be granted in each fiscal year beginning October 1st. (The net cap for general use is actually 58,200, since the United States now has Free Trade Agreements with Chile and Singapore that require 6,800 numbers be set aside each year for H-1B1s granted to nationals of these two countries.)
Unfortunately, the cap is exceeded by the need of U.S. employers for H-1B workers. The shortfall in supply gets worse each year. Receipts of cap-subject H-1B petitions for the 2007 Fiscal Year were halted in May 2006, more than four months prior to the start of the fiscal year (October 1, 2006). When considering making a job offer to a foreign national who may require H-1B work authorization, it is therefore imperative to determine which cases are subject to the cap and what cap exemptions and alternatives to the H-1B are available.
Which cases are not subject to the cap? H-1B extensions do not count toward the cap, nor do offers where the individual is being transferred from one H-1B employer to another (unless the prior employer was cap-exempt), or where the petitioner is an H-1B cap "exempt" employer (e.g., university/college, nonprofit or governmental research organization). For these types of cases, the cap is not an issue.
Which cases are subject to the cap? The types of cases affected by the lack of H-1B numbers are ones where the person is changing from a different status (such as F-1 student/practical trainee, L-1, TN) to H-1B, or moving from a cap-exempt employer to one that is not exempt, and most instances where the person is overseas and will be coming to the United States for H-1B employment. In these cases, it is crucial to inquire as to whether and when the individual has previously been granted H-1B classification, since the individual may have been counted under a previous year’s cap and not need to be counted again. It is also important to determine the individual's nationality (or nationalities in the case of a dual national), because there are alternatives to the H-1B classification based on nationality. (See below.)
What exemptions from the cap exist? Certain employers - universities and colleges and nonprofits and entities related to or affiliated with them, nonprofit research organizations, and governmental research organizations - are considered exempt from the H-1B cap. There is also an H-1B cap exemption for individuals with a master’s or higher degree from a U.S. university, which is limited to 20,000 each year. The exemptions for FY2007 were also exhausted months before the Fiscal Year began. Although possession of a U.S. graduate degree gives one a better chance of getting a new H-1B for the coming year, the numbers are limited and the timing of the award of the degree is critical to filing eligibility.
What alternatives to the H-1B exist for employing a foreign national? There are some alternatives in the event that H-1B classification is not available for the individual, such as the new E-3 classification for Australian nationals working in specialty occupations, J-1 eighteen month exchange visitor programs, TNs for Canadians and Mexicans, O-1s for extraordinary foreign nationals, and L-1s for individuals who are transferring from qualifying entities overseas. For nationals of Chile and Singapore, the segment of the H-1B cap reserved for H-1B1 classification has never been fully utilized, and remains available.
What is the outlook for the current cap? Unless Congress intervenes to increase the H-1B numbers, the fiscal year 2008 cap may be reached within days, if not hours, of the first filings. Gonzalez & Harris encourages client companies and individuals to contact Congress, to make sure that elected representatives are aware of how the lack of visa availability impacts your organization's ability to hire and retain the educated and specially skilled employees needed to compete in global industries. For advocacy assistance, visit The American Immigration Lawyers Association (AILA) web site at www.aila.org, and click on "Legislation & Advocacy" on the left side of the page. The legislative alerts and updates page provides access to issue summaries and the Contact Congress page will generate your choice of an email or letter to the appropriate members of Congress.
What can be done? Long-term planning for H-1B hires is essential. It is important that all Human Resources Managers, hiring managers, recruiters and other staff involved in the hiring process be aware of the cap situation. If your company has identified any individual who requires H-1B classification for employment with your organization prior to the end of the 2008 fiscal year (October 1, 2008), it is imperative that you act expeditiously. A hiring manager or recruiter may extend an offer of employment to a new graduate, incorrectly assuming that a one-year work permit will suffice until an H-1B petition can be approved. For example, a graduate might receive optional practical training (OPT) work authorization from February 2007 to February 2008. Unless a change of status to H-1B is approved before the H-1B numbers (or exemptions) are exhausted, the individual will be without work authorization from February 2008 until October 2008.
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