By Michael H. Markovitch, Esq. on February, 16, 2016
April 1, 2016 begins a new season for H-1B petitions. Talks of raising the H1-B annual cap from 65,000 visas to 110,000 will not come to pass this year. This means that the same number of annual H1-B visas will be available for a rapidly growing number of candidates. The USCIS is required to accept petitions for at least the first five days of the filing season - April 1, 2016 through April 5, 2016. I can pretty much guarantee you that by the end of this period there will be more than 200,000 filings. The purpose of this Article is to address certain important factors of the H1-B visa.
First thing to do is to see if you are not subject to the 65,000 annual visa cap. There are also an additional 20,000 H1-B visas available for candidates with Master’s Degrees. Some employers are not even subject to any annual cap at all. Some candidates aren’t either. So what category do you fall into?
Some questions to consider: How many H1-B visas are available this year? How are candidates selected for these limited number of visas? Finally, which candidates and employers are cap-exempt or not subject to any quotas?
There are 65,000 H1-B visas available annually for candidates with a U.S. Bachelor’s degree or its equivalent, or higher levels of education. There are also an additional 20,000 H1-B visas available for candidates with U.S. Master’s degrees or its equivalent or higher. After all of the petitions are in, the USCIS will hold a lottery to determine which candidates with Master’s degrees will get the additional 20,000 H1-B visas. This lottery is conducted via random computer selection. After these petitions have been selected, any candidates with Master’s degrees or higher who were not selected for these 20,000 will roll over into the regular lottery for the annual 65,000 visas for candidates with Bachelor’s degrees of higher. The same random computer selection process will determine who will be selected for these visa slots from the pool of petitions.
However, there are many circumstances in which one may not be subject to the annual H1-B visa cap at all. This has to do with your current visa status, and your employer.
If you are already working under H1-B visa status, then you are most probably cap exempt. Candidates filing for H1-B extensions and H1-B transfers are not subject to the annual cap. H1-B visa holders can also take on another concurrent H1-B job without being subject to the annual cap when they file for an H1-B visa to work this job as well. New jobs and concurrent jobs must also meet H1-B specialization requirements, and you must also meet H1-B educational requirements, but your petition will not end up in a lottery.
Some employers are cap-exempt, and if you are employed by one of them, you will not be subject to the H1-B lottery. Non-profit organizations and non-profit research institutes are cap-exempt. Institutions of higher education and governmental research organizations are also cap-exempt, as are hospitals. Even if this is your first time petitioning for an H1-B visa, if the job is for one of these kinds of employers, your petition will not be subject to the annual cap.
Before you file your H1-B petition, here are three key elements you need to determine:
1. What is your degree? Remember - to qualify for an H1-B visa, you must have a U.S. Bachelor’s degree or higher, or its foreign equivalent.
2. Is your employer exempt from the annual H1-B cap?
3. Is this your first H1-B petition, or is it a transfer, extension, or additional H1-B job?
For further information or questions you may have, please do not hesitate to contact the Law Offices of Michael H. Markovitch.