On April 6, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it had reached the congressionally mandated 65,000 regular H-1B cap for fiscal year 2019. USCIS also announced that it received sufficient H-1B petitions to meet the 20,000 U.S. master’s exemption. Any cap-subject H-1B petitions received after April 6, 2018 will be rejected.
USCIS will conduct a computer-generated lottery to select cap-subject cases received between April 2, 2018 and April 6, 2018. Cases received by USCIS during this period that are not selected under the lottery procedure will be rejected and returned to the petitioner with the filing fees.
The exhaustion of the FY2019 quota means that companies will not be able to file petitions for new H-1B petitions again until April 1, 2019 for positions with October 1, 2019 start dates.
Please click here to view the USCIS announcement that it has reached the FY2019 cap.
What is the H-1B cap?
The current law allocates an annual limit of 65,000 new H-1B visas that may be issued each fiscal year. Out of the 65,000 new H-1B numbers, 6,800 are set aside for H-1Bs under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements, resulting in 58,200 visas available under the regular H-1B program. Additionally, Congress has made available 20,000 H-1B visas for foreign workers holding a master’s degree or higher from a U.S. academic institution.
Who is subject to the H-1B cap?
With limited exceptions, all individuals seeking new H-1B employment are subject to the cap limit. Individuals subject to the H-1B cap include:
- Foreign nationals outside the United States seeking to enter in H-1B status;
- Foreign nationals already in the United States seeking to change to H-1B status (e.g., students in F-1 status or working under Optional Practical Training);
- Foreign nationals already in the United States seeking to change to H-1B status for a strategic reason (e.g., those in TN status wishing to apply for a green card, or those in L-1 status approaching the maximum L-1 time limit); and
- H-1B holders changing from a cap-exempt employer to a cap-subject employer.
Who is not subject to the H-1B cap?
Individuals who are employees of cap-exempt employers or who have been previously counted under an H-1B quota within the past six years are not subject to the H-1B cap. This includes:
- Foreign nationals already in H-1B status in the United States, working for a cap-subject employer, seeking to “port” their H-1B status to another company;
- Foreign nationals already in H-1B status in the United States seeking to extend their H-1B status;
- Foreign nationals who held H-1B status previously and have not used the full six years of H-1B time; and
- Foreign nationals seeking employment with certain H-1B-exempt employers such as universities, nonprofit research organizations and government research organizations.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
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