More About the H-1B Visa: Cap & Extensions

Did you know the number of H-1B visas issued each year is subject to an annual cap, known as H-1B cap, and is determined by the U.S. Congress? Presently, the maximum number of visas is capped at 65,000 per fiscal year (October 1 to September 30). An additional 20,000 are available to individuals with a Master’s degree or higher from a U.S. institution of higher education. The USCIS begins accepting new H-1B petitions for the upcoming fiscal year on April 1 of that year, and is required to keep accepting cap filings for a minimum of five business days. Thereafter, USCIS continues to accept new petitions only until the H-1B quota is reached. If there are enough cases to meet or exceed the cap in the first five days, the cap closes and USCIS stops accepting new cap filings.

The USCIS then uses a computer-generated random selection process, commonly known as the “lottery” to randomly select petitions that USCIS will adjudicate. USCIS conducts the selection process for advanced degree exemptions first. Advanced-degree petitions that weren’t selected become part of the random selection process for the 65,000 cap. For cap-subject petitions not randomly selected in the lottery, USCIS rejects and returns the petitions with the filing fees.

Are there H-1B petitions not subject to cap?

Under certain circumstances, certain types of H-1B applications are not subject to the cap, including the following:

  • Applications for extensions of H-1B status;
  • H-1B petitions for concurrent employment where the foreign worker is presently in H-1B status that is subject to the cap;
  • H-1B petitions to change employers if the foreign worker has been subject to the quota in the past six years;
  • H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government or nonprofit research organizations; and
  • H-1B applications for physicians who received J waivers under a Conrad 30 Waiver Program

Can an H-1B visa extend beyond the six-year limit?

In certain circumstances, an employee may receive extensions of H-1B status beyond six years, if he or she is in the process of applying for employment based permanent residence.

Specifically, under the American Competitiveness in the Twenty-First Century Act (referred to as “AC21 Act”), an employee may request extensions under the following situations:

  • If an H-1B holder has submitted either a Labor Certification Application (LCA) or an I-140 immigration petition prior to their fifth year anniversary of having the H-1B visa (365 days before reaching the six-year limitation), and the LCA or I-140 has not been denied, then he or she is entitled to renew his H-1B visa beyond the six-year limit until a decision has been rendered on the application for permanent residence.
  • If the H-1B holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to the priority date not being current, he/ she may be entitled to a three-year extension of his H-1B visa.

What about dependents?

Spouse and minor children of an H-1B employee are authorized to live in the U.S. in H-4 status.

The H-1B process can be very complex. Contact the Law Office of Alison Yew to speak to our H-1B visa attorneys in San Jose for more detailed information and assistance on the preparation and filing of H-1B petitions.