H-1B Cap Update; Master's Cap Reached

USCIS has reported that it has receipted 20,000 H-1B petitions under the U.S. master's cap exemption for the FY 2012 H-1B cap. Accordingly, the master's cap has been reached for the 20,000 additional H-1B visas available under an exemption for foreign nationals (usually F-1 students) who have graduated from a U.S. college or university with a master's degree or higher. USCIS also reports that as of October 28, 2011, it has received 49,200 out of 65,000 available H-1B petitions under the regular cap. Therefore, less than 16,000 H-1B visas remain available under the FY 2012 H-1B cap.

Per immigration rules, a limited number of H-1B work visas are available each year. Under the regular H-1B cap, 65,000 H-1B visas are available. An additional 20,000 are available per the master's cap exemption. Cap-subject H-1B visas become available each year on October 1 — and filings with USCIS can be made no sooner than six months in advance. The H-1B visa is the most popular visa category for employers to quickly obtain work authorization for key foreign national employees, and is available for a wide variety of professional positions, including engineering, biology, computer science, accounting, teaching, sales/marketing, and many other professional occupations.  Foreign nationals who will fill a professional "specialty occupation" position can qualify for H-1B status. A "specialty occupation" is an occupation that requires at least a bachelor's degree (or the equivalent) as a minimum requirement. The foreign national must have a bachelor's degree (or the equivalent) in the field of specialty in order to qualify for H-1B status.

With the master's cap for this year's allotment now reached, those H-1B cases now being filed for foreign nationals who would have qualified under the master's cap exemption, are counted by USCIS against the regular cap. USCIS will accept H-1B cases until the entire allotment of 65,000 has been exhausted. In looking back at the H-1B cap count from this time period last year, USCIS reported that 16,700 master's cap H-1B visas had been used (3,300 remaining) and 45,600 regular cap (19,400 remaining) H-1B visas had been used. It was not until December 24, 2010 when USCIS reported that the 20,000 master's cap had been reached.  Then, on January 26, 2011, USCIS made the formal announcement that the H-1B cap (regular cap and master's cap) had been reached. Now that additional master's cap cases will be counted against the regular cap, the regular cap will be reached sooner than last year under the FY 2012 allotment. Based on the number of filings being counted by USCIS, the H-1B cap could be reached by early December 2011. Keep in mind that an H-1B petition just needs to be received by USCIS and not approved to be counted towards the H-1B cap.

It is important to note that not all H-1B cases are subject to the cap. People, and not petitions, are to be counted under the H-1B cap. Under this rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap.

Cases subject to the H-1B cap include:

• Petitions for new H-1B employment of foreign national who is outside of the U.S.
• Petitions for new H-1B employment requesting a change of status from one nonimmigrant visa category to the H-1B category (e.g. F-1 to H-1B, TN to H-1B, L-1 to H-1B, etc.)
• Petitions to change H-1B employment from a cap-exempt entity (such as a university) to a cap-subject entity (such as a private employer)

Cases NOT subject to the H-1B cap include:

• Petitions to change employers for a foreign national already in H-1B status with a cap-subject entity
• Petitions to extend or amend H-1B status
• Petitions for H-1B concurrent employment
• Petitions filed by institutions of higher education and non-profit organizations that are related to institutions of higher education
• Petitions for J-1 physicians who receive a waiver of the two-year home residence requirement
• Petitions for Chilean, Singaporean, and Australian citizens pursuant to special H-1B1 and E-3 procedures

With USCIS reaching the master's cap much earlier this year, companies that are looking to hire new workers in 2012 who may need H-1B work authorization could be out of luck if the H-1B cap has been reached and one of the exceptions does not apply. Such employers would then need to look at a different visa option for a foreign national worker, such as an F-1 OPT STEM extension, L-1 intracompany transferee visa, a TN visa for Canadians/Mexicans, or another applicable work visa category.  Accordingly, companies must start planning now for the filing of any H-1B work visa petitions for 2012 employees as the next allotment of H-1B visas will not become available again until October 1, 2012.