H1BCapInfo.com
H-1B Cap FAQs: The Basics
What is the H-1B Cap?
How Many H-1Bs Are Available?
What Is The H-1B Counting Period?
When Can H-1B Petitions Be Filed?
Which H-1B Petitions Fall Under The
H-1B Cap?
Which H-1B Petitions Are Not Impacted?
What Is The H-1B Masters Cap?
How Long Does It Take To Hit The H-1B
Cap?
How Long Will It Take This Year?
__________________________________________________________________________
What Is The H-1B Cap?
Under U.S.immigration
law, there is an annual limit on the number of new H-1B petitions that can be
granted. This annual limit is referred
to as the "H-1B Cap."
How Many H-1Bs Are Available?
The total annual limit is 65,000. However, 6,800 of
these numbers are reserved for citizens of Chile
and Singapore
pursuant to trade treaties. So, the H-1B
Cap is effectively 58,200. In the past, the H-1B cap had been raised to
as high as 195,000, but the cap-raising legislation expired and Congress has
not renewed it.
What Is The H-1B Counting Period?
The H-1B cap is calculated based on the USCIS fiscal year,
which starts on October 1 and ends on September 30. October 1, 2008
marks the start of Fiscal Year 2009.
When Can H-1B Petitions Be Filed?
H-1B petitions subject to the H-1B cap can be filed
no more than six months before the start of a fiscal year. For
Fiscal Year 2009, the first available filing date is April 1, 2008. Starting
on this date, employers can file H-1B petitions requesting a start date no
earlier than the first day of Fiscal Year 2009, or October 1, 2008.
Which H-1B Petitions Fall Under The
H-1B Cap?
Generally speaking, only petitions requesting
"new" H-1B status are counted in the H-1B cap. This
includes petitions for employees outside the U.S.,
and for individuals in the U.S. in
another immigration status (typically F-1 students, TN workers or H-4 dependents) who
are seeking to change status to H-1B.
Which H-1B Petitions Are Not Impacted?
A petition filed on behalf of an employee who is already
in H-1B status with one employer, and is seeking to change to another employer,
is not normally subject to the H-1B cap. Also, H-1B petitions filed by
certain exempt employers (colleges/universities and certain non-profit
organizations) are not subject to the H-1B cap.
H-1B petitions that are not subject to the H-1B cap can be
filed at any time during the year regardless of whether the H-1B cap has been
exhausted or not.
What Is The H-1B Masters Cap?
The first 20,000 petitions received from employees with U.S.
Masters or Ph.D degrees are exempted from the H-1B cap. The qualifying degree must be possessed at
the time of filing, but need not be a minimum job requirement for the offered
position.
How Long Does It Take To Hit The H-1B
Cap?
Last year, USCIS received more than twice as many petitions
as cap numbers available on the first day of filing. As a result, a lottery was conducted to award
the available numbers, and the petitions not selected were rejected and
returned. The special cap for U.S.
Masters/Ph.D graduates was met on April 30, 2007.
How Long Will It Take This Year?
It is almost certain the H-1B cap will again be met on the
first day of filing (April 1, 2008), and the number of petitions received will
exceed last year’s total. If so, a
lottery would again be conducted, and the odds of having an H-1B petition
selected will likely be less favorable than last year. It is also very possible that the special cap
for U.S. Masters/Ph.D graduates will be met on April 1, 2008 or shortly thereafter.
Click here to access a PDF version of the H-1B Cap Basics FAQ. 
© Ellis Porter PLC All Rights Reserved