What is the H-1B Cap?

The “H-1B Cap” refers to the annual numerical limitation on the number of H-1B visas that can be issued for a given fiscal year, which runs from October 1 through September 30. The opening date for filing a cap-subject petition is April 1 of each calendar year. The Cap is as follows:

General Cap: Cap of 65,000 H-1B Visas Per Year

Minus H-1B1s: Free trade visas (H-1B1) for Chile (1,400) and Singapore (5400). If they are not used, they become available between Oct. 1 and Nov. 15 of the next fiscal year.)

Master’s Cap: Up to 20,000 additional H-1B visas are available for persons with a U.S. master’s or higher degree.

Who needs an H-1B Visa?

The H-1B visa is most often associated with high tech workers – i.e. engineers, computer programmers, IT specialists, but it can also be used for accountants, architects, doctors, teachers, researchers or any other profession which requires someone with specialized knowledge.

How long can someone be on an H-1B visa?

An H-1B visa is granted initially for up to 3 years. Additional extensions up to 6 years may also be obtained. Yearly extensions beyond 6 years are available where the individual has met certain requirements under AC21. See FAQ: How can the H-1B visa classification be extended beyond 6 years?

How can the H-1B visa classification be extended beyond 6 years?

A foreign national can only remain in the U.S. in H-1B status for a total of 6 years unless the following conditions are met:

  • If a Labor Certification (ETA 9089) or an I-140 petition has been filed on the H-1B holder’s behalf at least 365 days before the expiration of the six-year limitation, and the Labor Certification or I-140 has not been denied. In that case, the H-1B visa holder may extend his or her H-1B status on an annual basis beyond the six-year limitation. OR
  • If there is an approved I-140 petition on behalf of the H-1B visa holder and the immigrant visa number is not available for him/her, the H-1B visa holder may extend his/her H-1B on a three-year interval beyond the 6-year limitation. There is no 365-day requirement for this circumstance.

Under both scenarios, the H-1B can be extended indefinitely if there is no visa number available.

Please note that time spent in L-1 status also counts toward the 6th year limitation. Time spent in H-4, L-2 or other non-immigrant status does not count toward the 6th year limitation. Further, if the foreign national is outside of the U.S. for at least 1 year, the 6th year limitation is reset.

Can I apply for permanent residence while on an H-1B visa?

An H-1B visa is a “dual intent” visa. This means that a person on an H-1B visa can have the temporary intent to work for an H-1B employer, but also have the intent to permanently reside in the U.S. Thus, because of this dual intent, a person on an H-1B visa can also simultaneously have their application for permanent residence be pending – and it does not matter whether the petition for permanent residence is family-based or employment-based.

Can I self-petition my H-1B visa?

An H-1B is an employment based petition which requires an “Employer” in order to qualify for this visa classification. In recent years, USCIS has clarified its position on the definition of an “Employer” relying upon 8 CFR 214.2(h)(4)(ii). (See Jan. 8, 2010 Neufeld Memo.) Significantly, USCIS requires evidence that there is an “employer-employee” relationship which is defined as requiring the employer to be able to “hire, pay, fire, supervise, or otherwise control of any such employee.”

This may be difficult to establish if the employer and the Beneficiary are one and the same. Further, even where the employer is a separate legal entity such as an incorporated company, if the Beneficiary is the sole owner, the H-1B may be difficult to approve. This can be addressed though if there is an independent board of directors or other actors that have control over the employer company.

Can I file an H-1B through my own start-up?

A start-up can successfully file an H-1B petition for one of its founders if it can establish that an Employer-Employee relationship will exist between the H-1B Beneficiary (Founder) and the Start-Up. This can often be established if there is an independent board of directors or other actors that have control over the Start-Up and have the right to hire, pay, fire, supervise or otherwise control the Founder.

At present, current immigration law does not have a “Start-Up” visa. However, beginning in 2012, DHS established an “Entrepreneur’s In Residence” program with the intention of creating a better understanding of the unique issues and business models of Start-Ups. As a result of this program, the approval rating for petitions by Start-Ups has increased.

Can an employer file an H-1B petition without the LCA being certified?

No. An employer must wait until the Department of Labor (DOL) certified the Labor Condition Application (LCA). This can take up to 7 calendar days. If the company has never previously filed an H-1B petition the employer may need to pre-register with the DOL so that DOL can verify the business.