Overview of the H-1B Visa Cap

Some H-1B Petitions are not subject to the H-1B Visa Cap or Qualify for an Exemption.

The H-1B “cap” refers to the annual numerical limitations set by Congress on the number of H-1B visas available for use in the U.S. The immigration laws have placed a numerical limitation on H-1B visas since the creation of the H-1B visa category in 1990. The law originally limited the number of H-1B visa to 65,000. Congress raised the quota eventually up to 195,000, before resetting the limit back to 65,000 cap for fiscal year 2004. Ever since 2004, the H-1B visa numbers have been exhausted early. Certain H-1B petitions are not subject to the annual numerical limitation. Other petitions may qualify for an exemption to the cap.

1. Petitions not Subject to the H-1B Cap:

Individuals who already hold H-1B status do not count toward the cap. USCIS will continue to process and accept petitions submitted on behalf of an individual already in H-1B status and include the following:

• Petitions seeking an extension of H-1B status;

• Petitions seeking to change the terms of H-1B employment;

• Petitions requesting to change H-1B employers; or

• Petitions requesting to work with an additional H-1B employer.

2. Petitions Exempt from the H-1B Cap:

Certain H-1B petitions may continue to be filed and processed by USCIS for the current fiscal year because they qualify for exemptions from the cap. The following H-1B petitions are exempt:

• H-1B Advanced Degree Exemption: Petitions submitted on behalf of individuals with a U.S.-earned master’s or higher degree. The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, made available 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a U.S. academic institution.

• Petitions for new H-1B employment with an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization;

• Petitions submitted on behalf of citizens of Singapore and Chile, who are subject to another cap under free trade agreements made with those countries;

• Certain petitions submitted on behalf of individuals who were counted toward an H-1B cap within the past six years who have not left the U.S. for more than one year since obtaining H-1B status; and

• Petitions submitted on behalf of physicians who have obtained a waiver of the J-1 visa two-year residence requirement.

3. More Information:

• USCIS Memo, Aytes (May 6, 2006) (describing H-1B cap exemption for individuals possessing a U.S. master's degree).

Revised Feb. 28, 2008.