All about H1B Visa Cap – Basics, Regular vs. Masters Quotas, Calculations, Lottery

The questions that often arise are like :

• What is H-1B cap and how it is determined.
• What petitions are included, and what are not?
• What about Chile and Singapore numbers? Etc

With this article, I will try to answer some of the most commonly asked questions.

H-1B Visa  Cap Basics

• Regular Cap: This is loosely referred as general quota/cap or regular quota or non-advanced degree quota/cap. The annual cap is set as 65,000.
• Advanced Degree Cap: This is loosely referred as Masters’ quota/cap. The annual cap is set as 20,000.
• Chile-Singapore Cap: This is the number set aside for applicants from Singapore and Chile. Annual cap is 6,800 and the number is taken out from Regular Cap.

Who Qualifies For H1B Advanced Degree Cap?
A person who has obtained a U.S. Master’s degree or higher qualifies for this cap. A person who has obtained Associate or Bachelor’s degree from US does NOT qualify for this cap. Similarly, a person who has obtained a foreign (i.e. non-US) Master’s degree or higher also does NOT qualify for this.

How is H1B Regular Cap Calculated?
Use the following equation to get the cap amount:
Current fiscal year = XXXX
The year prior to current fiscal year = YYYY
Cap for XXXX = Annual Cap for XXXX (i.e. 65,000) – H-1B1 Cap for XXXX (i.e. 6,800) +Unused H-1B1 numbers from YYYY + Extra petitions for XXXX to account for the petitions that may get denied, rejected or withdrawn during XXXX

Important Notes:

1. The unused H-1B1 petitions for the previous year are first added to the cap and consumed. So when USCIS publishes a cap count of 21,000 that number already includes the unused H-1B1 number of the previous year. For official statement on this, look at the first question at this USCIS link. You can also refer to this document, which tells that these numbers need to be utilized within first 45 days of the new cap season. The H-1B1 category is heavily underutilized. As evident from this FY-09 number, only 700 petitions were used (which means 6,100 petitions were added to FY-10 cap). [FY-09 was the year quota got over within first few days, and this shows the low demand for H-1B1 even when there was a huge demand for H-1B]
2. USCIS has historically accepted more H-1B petitions than available cap numbers based on the assumption that some petitions will be denied, rejected or withdrawn. These numbers are not published separately and so it not possible to what these numbers are. For official statement on this, look at the second question at this USCIS link.
3. The count of petitions for the current fiscal year only includes petitions that reached USCIS prior to final receipt date (if already declared) and which are either pending processing or have been approved. It doesn’t include any petitions that have already been denied, rejected or withdrawn on the cap publication date.

What Happens After Advanced Degree Cap is Reached, but Regular Cap is Still Open?
Once the Advanced Degree cap is reached, eligible petitions for this cap are routed to Regular Cap. If one looks at historical numbers, the pace at which Regular Cap gets consumed increased once the Advanced Degree Cap is reached.

Why are the Cap Counts Always In Multiple of Hundreds?
I don’t know the actual reason to this, but my assumption is that they always round the numbers to nearest hundred for publishing purpose. So instead of publishing count of 21,300 they would publish the number 21,000.

How can USCIS Determine that the Cap has Reached To Precision?
Again, I don’t know the actual reason to this, but I will explain my understanding. Let’s say, there are 5,800 unused H-1B1 numbers from previous year. So the cap becomes 64,000 excluding any numbers set aside to account for future denials/rejections/withdrawals. Now, USCIS will determine the historical denial/rejection/withdrawal rate and figure it’s 5% (a hypothetical number) w/ a margin of error of 1% (again a hypothetical number). So the range becomes 4% to 6%, which turns out to be 67,600 to 68,900 (based on a size of 65,000 – 6,800 + 5,800). Once USCIS receives enough petitions in this range, they would declare the cap as closed. This way they don’t need to be precise w/ the count.

When is Lottery Conducted?
First, the official term USCIS uses is random selection (lottery reminds one of Vegas gambling).

• If the cap is reached within first 5 days of new filing season, they will subject all petitions received during those 5 days to computer based random selection. First it will be conducted for Advanced Degree cap. The ones that didn’t make through this will be added to Regular Cap, and another random selection would be done of these.
• If the cap is reached outside the first 5 days of new filing season, USCIS will determine if they have received sufficient petitions or more than sufficient petitions. If they received just sufficient petitions, then no random selection is conducted. Otherwise, computer based random selection is done (as explained in previous point)

What are Cap-Exempt Petitions?
Cap-exempt petitions can be filed:

• to extend the amount of time a current H-1B worker may remain in the US (aka H-1 extension)
• to change the terms of employment for current H-1B workers (aka H-1 amendment)
• to allow current H-1B workers to change employers (aka H-1 transfer)
• to allow current H-1B workers to work concurrently in a second H-1B position (aka concurrent H-1)
• by an exempted employer like non-profit, hospital, university etc

These petitions can be filed anytime during the year, and are not subject to April 1 filing date and October 1 start date.

Is the Cap Opened Again After Being Declared Closed?
This might disappoint you, but the answer is No. There has never been an instance of cap being opened again once it has been declared closed. One should not rely on this.