H-1B Quota

The USICS announced on June 19, 2009, it had NOT yet received more H-1B petitions than the H-1B caps.  However, the USCIS only makes approximately 65,000 H-1B visas available each year.  Therefore, the H-1B cap may be reached at any time.  To have a chance to have your H-1B processed for the next fiscal year, you should start Now because it takes time to prepare an H-1B petition for filing.

If you are a Citizen of Australia, you may be able to qualify for the E-3 visa which is a kind of special "Australian H-1B". Under current law, 10,500 E-3s are set aside each year for nationals of Australia.

If you are a Citizen of Chile, you may be able to qualify for the H-1B1 visa which is a kind of special "Chilean H-1B". Under current law, 1,400 H-1B1s are set aside each year for nationals of Chile, under the United States-Chile Free Trade Agreement. INA 214(g)(8)(A)(ii).

If you are a Citizen of Singapore, you may be able to qualify for the H-1B1 visa which is a kind of special "Singaporean H-1B". Under current law, 5,400 H-1B1s are set aside each year for nationals of Singapore, under the United States-Singapore Free Trade Agreement. INA 214(g)(8)(A)(i).

Under current law, a special exemption exists for holders of U.S. Master's degrees. Specifically, the law allocates an additional 20,000 H-1Bs for holders of U.S. Master's degrees. This means that holders of U.S. Masters degrees are first counted against the quota of 20,000, and then after that quota runs out, they are counted against the regular quota.

If you were previously COUNTED under the H-1B quota, you are exempt from the quota for your next employment, or for any concurrent employment.

If your Employer is a Nonprofit Research Organization or Government Research Organization, then your H-1B petition is exempt from the H-1B quota.

An "Institution of Higher Education", e.g., a College or University, is exempt from the H-1B quota, under current law. An "Institution of Higher Education" is generally a U.S. College or University (as defined in the Higher Education Act of 1965, section 101 (a), 20 U.S.C. section 1001(a)).

If you are employed by an H-1B quota exempt employer under H-1B status, the USCIS has interpreted the regulations to permit you to obtain CONCURRENT employment, e.g., a part time position, with a non-quota exempt H-1B employer, provided that you maintain your employment with the original H-1B exempt employer.

If your employer is a Non-Profit Organization which is AFFILIATED or RELATED to an Institution of Higher Education, then your H-1B petition may be deemed exempt from the quota, under the applicable regulations. An "Institution of Higher Education" is generally a U.S. College or University (as defined in the Higher Education Act of 1965, section 101 (a), 20 U.S.C. section 1001(a)).

The USCIS has interpreted the regulations to deem an H-1B nonimmigrant "quota exempt" who works "at" a quota exempt institution, even if he or she works for a non-exempt employer, under certain circumstances, as discussed in this article.

This year the H-1B quota ran out on the very first day! In fact, there was such a deluge of H-1B applications that the USCIS was forced to run a lottery to decide who among the applicants would receive a coveted H-1B visa. As a result, many applicants who applied on the very first day were unable to get an H-1B visa. Therefore, if you want to have a chance of obtaining an H-1B visa, your best bet is to qualify under one of the quota exemptions listed below. Best of all, if you qualify for an H-1B exemption, you can proceed with your H-1B petition immediately, to start work now (either immediately upon approval of the H-1B petition or upon receipt of the petition if you qualify for portability), without having to wait for the next fiscal year!

The USCIS has announced that the H-1B cap for regular cases was reached on April 2, 2007, i.e., the first day that the filing was permitted.  This means that petitions for regular cases will go into a random selection lottery.  The USCIS does not yet know whether the Master's cap was reached or not.  The USCIS notice appears below, and as an attached PDF file.

The USCIS has announced that the H-1B cap for regular cases was reached on April 2, 2007, i.e., the first day that the filing was permitted. This means that petitions for regular cases will go into a random selection lottery. The USCIS does not yet know whether the Master's cap was reached or not. The USCIS notice appears below, and as an attached PDF file.

The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B QUOTA, individuals who spent one year outside of U.S. and did not exhaust entire six year term can CHOOSE to be re-admitted for “remainder” of initial six-year period without being subject to H-1B cap.  The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006.