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, plus an additional 20,000 numbers reserved for individuals who possess a US Master’s Degree or higher (called the “Master’s Cap”), for a total of 85,000.

What is the H-1B cap 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, 2024 marks the start of USCIS Fiscal Year (FY) 2025. So, this year’s H-1B Cap filing period is referred to as the FY 2025 H-1B Cap.

What type of 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, L-1 workers, TN workers or H-4 dependents) who are seeking to change status to H-1B.

What types of H-1B petitions are not impacted by the H-1B Cap?

A H-1B 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 subject to the H-1B Cap.  H-1B extension petitions and H-1B amendment petitions are also not subject to the H-1B Cap. Additionally, 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 cap registration process and how does it work?

Starting in 2020, USCIS has implemented a new H-1B cap registration process that requires employers to pre-register employees via a USCIS online tool, and then the employer can only file an H-1B cap application for its employee if the employees registration is selected as part of the USCIS random selection process conducted on the pool of all registrations received. Despite the new registration process, the H-1B cap remains unchanged at 85,000.

When can H-1B cap 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 2025, the first available filing date is April 1, 2024. Starting on this date, if an employer’s registration is selected for a particular employee, the employer can file an H-1B petition for that employee during a 90-day filing period beginning April 1. The employer cannot request a start date any earlier than the first day of Fiscal Year 2025, which is October 1, 2024.

This year, USCIS has announced that the H-1B cap registration period will be March 6 - March 22, 2024.

H-1B News

Immigration News & Alerts
New DOL Rule Results in Substantial Increases to H-1B, E-3 and PERM Prevailing Wage Levels
New DOL Rule Results in Substantial Increases to H-1B, E-3 and PERM Prevailing Wage Levels

The Department of Labor (DOL) has published a new regulation that substantially increases the prevailing wage levels used when filing H-1B and E-3 work visa applications and PERM labor certification applications. This new DOL rule is effective immediately.

However, since DOL circumvented the normal rulemaking process to roll out this new rule with very weak legal justifications for doing so, we expect this new rule will be challenged in court.w rule with very weak legal justifications for doing so, we expect this new rule will be challenged in court.

New DHS Rule Narrows H-1B Eligibility Requirements and Imposes Other Limitations
New DHS Rule Narrows H-1B Eligibility Requirements and Imposes Other Limitations

The Department of Homeland Security (“DHS”) has published a new rule that has the potential to significantly narrow the eligibility criteria for the H-1B work visa program. Unless it is blocked by litigation that is sure to follow shortly, the new rule will take effect in 60 days and it will apply to all H-1B petitions filed on or after the effective date, including new petitions, extensions, a request to change employers, and amendments.

New H-1B Rule Submitted for OMB Review
New H-1B Rule Submitted for OMB Review

On Friday, Sept. 4, 2020, the Department of Homeland Security (DHS) submitted a new H-1B rule to the Office of Management and Budget (OMB) to be reviewed. OMB review is the final step of the agency rulemaking process that must be completed prior to a new rule being published.

The actual text of the rule is not yet available, but based on a description of the rule previously included in the agency’s regulatory agenda, the new H-1B rule is expected to modify the definition of an H-1B specialty occupation, as well as the definition of employment and the employer-employee relationship for H-1B purposes. Additionally, it is anticipated the rule will also impose new H-1B wage requirements.

H-1B Cap Update: Second Round of H-1B Cap Numbers Released
H-1B Cap Update: Second Round of H-1B Cap Numbers Released

Last week rumors of a second round of FY21 H-1B cap registration selections began circulating in the US immigration community. Ellis Porter is excited to report that these rumors have become reality and we started receiving new H-1B cap selection confirmations on Friday, August 14.

By way of background, by March 27, 2020, USCIS announced that it had received nearly 275,000 H-1B registrations for FY21 H-1B cap, and selected the first round of registrations. However, due to the COVID-19 pandemic, closure of borders, and several presidential proclamations, USCIS has received far fewer H-1B petitions than expected. As a result, USCIS will select additional registered cases.

Trump Issues Proclamation Suspending Entry to the US in Several Major Work Visa Categories
Trump Issues Proclamation Suspending Entry to the US in Several Major Work Visa Categories

In a move that many had anticipated for some time, President Trump signed a Presidential Proclamation on Monday, June 22, suspending the issuance of work visas in the H-1B, H-2B, J-1 and L visa categories based on the administration’s belief that doing so will avoid the risk of “displacing and disadvantaging United States workers during the current recovery.”

USCIS Releases H-1B Cap Registration Statistics
USCIS Releases H-1B Cap Registration Statistics

USCIS has confirmed they received nearly 275,000 H-1B registrations from roughly 40,000 employers during the inaugural year of the new H-1B cap pre-registration program. Beginning April 1, 2020, USCIS started accepting H-1B petitions for the selected registrations.

USCIS Completes H-1B Cap Electronic Registration Selection Process
USCIS Completes H-1B Cap Electronic Registration Selection Process

USCIS has completed the random lottery of all electronic registrations received during the initial period of the FY2021 H-1B cap. USCIS expects to notify successful petitioners by March 31, 2020. Once a petitioner receives notification that a registration has been selected, they can proceed to file the full H-1B petition on behalf of the selected beneficiary.

Ellis Porter Announces Free H-1B Cap Registration Service for Employers; Also, 12 Important Things to Know about the New H-1B Cap Registration Process
Ellis Porter Announces Free H-1B Cap Registration Service for Employers; Also, 12 Important Things to Know about the New H-1B Cap Registration Process

The new H-1B cap registration process is being implemented this year and USCIS has finally provided some additional guidance about the new process and how it works, but open questions remain about several key aspects of the new process.

Check out our list of 12 important things to know about the new H-1B cap registration process, and read about how Ellis Porter plans to manage the registration process, including our free H-1B cap registration service for employers.