There are 65,000 new cap-subject H1B visas available every fiscal year. Of these, 6,800 are reserved for applicants from Chile and Singapore, leaving 58,200 available in the general pool. In years of high demand (as is expected this year), USCIS receives more than enough applications to distribute all available H1Bs within the first few days after H1B season opens on April 1. It therefore stops accepting applications after the first week of April and conducts a lottery among the applications already accepted to determine which will be processed. For applicants subject to the cap, this effectively means they must be ready to apply by the first week of April 1, or wait until the following April.
Not everyone is subject to the cap, however, and these applicants may have greater flexibility in the timing of when they apply. I’ve outlined the classes of applicants not subject to the cap below.
Holders of US Higher Degrees: Hold a US master’s degree or higher from an accredited US public or nonprofit university, you can take advantage of a special exemption often referred to as the “Master’s Cap.” Under the Master’s Cap, the first 20,000 applicants with an appropriate degree will be exempt from the 65,000 cap. In practice, applicants under this exemption will also likely be limited to April filings in years of high demand when more than enough applications are received during the first few weeks after H1B season opens on April 1.
Certain Prior H1B Holders: If you have worked in H1B status in the past and did not use the maximum six years available, you may be able to file a new H1B petition without being subject to the cap, even if you have been outside of the US for a year or more since then. When a person is granted an H1B, it can be extended for up to 6 years. Until that person has used up the full 6 years, he can file an extension to stay with the same employer, apply to change jobs within the US, or leave the US for awhile and come back to a new job, all without being subject to the cap. He will not be granted a full 6 years with every change, however. Rather, the amount of time available will be 6 less any time already spent working in H1B status while physically in the US.
You can determine whether or not you have used up your 6 years by adding up all the time you spent 1) in the US, 2) in H1B status. Any time you spent outside of the US while you had H1B status in the US doesn’t count towards the 6 years. For instance, if you spent 5 years working in the US on an H1B, but went to India for one month of vacation every year, your calculation is 5 years – 5 months = 4 years 7 months of H1B status used. This means you could work for a new employer for up to 1 year and 5 months without being subject to the cap. If you worked in the US in HiB status for 2 years and then returned to your home country for two years, you would be eligible to work on an H1B for the same employer or a new employer for another 4 years without being subject to the cap.
Employees of Certain Institutions: If your job offer is with an institution of higher education or a related nonprofit entity, or a government or nonprofit research institution, you may not be subject to the cap.
J-1 Holders Granted Waiver: Medical doctors previously holding J-1 status who received a waiver of the home residency requirement through the Conrad 30 Waiver program due to government interest are not subject to the cap.
Derivative: Finally, H4 derivatives of H1B holders are not counted against the cap.
As always, it is impossible to cover all of the intricacies of whether or not a person is cap subject in a single blog post. The answer to whether you yourself are subject to the cap will depend on an analysis of the individual facts of your case. If you would like to discuss your situation in detail, feel free to send me a message or schedule an appointment to talk over the phone or skype.