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H-1B Regular Cap v. Master’s Cap: What’s the difference?

by Cedric M. Shen

May 29, 2012 | 4:35 pm

Every year, Congress allots 65,000 H-1B work visas for U.S. Employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.  This is known as the “regular cap.”

Some of these petitions are exempt from the regular cap under the advanced degree exemption, which provides a visa to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher.

The USCIS begins accepting applications on April 1st for every upcoming fiscal year, which begins on October 1st.  The 2013 fiscal year began on April 2, 2012 and nobody expected the cap to begin filling up at this pace.  As of May 18, 2012 – less than 1.5 months after the USCIS began accepting petitions – 42,000 petitions were submitted under the regular cap, accounting for 65% of the cap.  Furthermore, 16,000 petitions were received under the master’s cap, accounting for 80% of this exemption reached.

So what happens once the 20,000 master’s cap is reached?  Does the USCIS only accept petitions for beneficiaries with bachelor’s degrees?  The answer is no.  Unless otherwise exempt from the cap, petitions filed under the master’s cap after the 20,000 visa cap is reached will be counted against the regular cap.  In other words, all cap-subject petitions will fall under the regular cap, whether the beneficiary has a master’s degree or not.  What this will mean is that once the master’s cap is reached, the USCIS will begin receiving petitions under the regular cap at an even faster pace.  It is widely expected that all 85,000 H-1B visas will be accounted for by July – the fastest since the Great Recession began in 2008.

For employers looking to file an H-1B petition, it is strongly recommended that you start the process as soon as possible.  Given that the average petition takes at least 2-3 weeks to prepare, the cap may very well be reached by the time it is submitted.

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ABOUT THE AUTHOR

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Cedric M. Shen is a Los Angeles-based immigration attorney experienced in helping foreign nationals enter the United States. His law practice focuses on employment-based green...

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