Please see the information relating to H-1B Program Changes for FY 2009 in the Related Links section of this page.

What is a “Cap”?

The word “Cap” refers to annual numerical limitations set by Congress on the numbers of workers authorized to be admitted on different types of visas or authorized to change status if already in the United States.

H-1B

Established by the Immigration Act of 1990 (IMMACT 90), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years and, in some cases, beyond, if an a/s application is pending.

An H-1B nonimmigrant (with the exception of certain fashion models) must have a bachelor’s degree or higher (or equivalent) in the specific specialty. The H-1B visa program is used by some U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor’s degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes certain fashion models of distinguished merit and ability and up to 100 persons who will performing services of an exceptional nature in connection with Department of Defense (DOD) research and development projects or coproduction projects.  The current annual cap on the H-1B category is 65,000.   Not all H-1B nonimmigrants are subject to this annual cap.

H-1B Employer Exemptions

H-1B nonimmigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

H-1B Advanced Degree Exemption

The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The H-1B Visa Reform Act of 2004 also makes available 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a U.S. academic institution. Such persons are statutorily exempted from the annual cap.

¹ 6,800 visas are set aside during the fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can be made available for H-1B use with start dates beginning on October 1, 2007, the start of FY 2008. USCIS has added 5,800, the projected number of unused H-1B1 Chile/Singapore visas to the FY 2008 H-1B cap.

H-1B1

An H-1B1 is a national of Chile or Singapore coming to the Unites States to work temporarily in a specialty occupation. The law defines an H-1B1 specialty occupation as a position that requires theoretical and practical application of a body of specialized knowledge. The beneficiary must have a bachelor’s degree or higher (or equivalent) in the specific speciality. The combined statutory limit is 6,800 per year. 1,400 visas are set aside annually for nationals of Chile, and 5,400 for nationals of Singapore.

H-2B

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves.  USCIS regulations allow for filings 6 months in advance.  However, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be filed more than 120 days in advance of the need for the employee to ensure the accuracy of the labor market test.  Thus, USCIS normally begins receiving H-2B petitions with employment start dates in October in June or July.

What is the H-2B numerical limit set by Congress?

The H-2B numerical limit set by Congress per fiscal year is 66,000.  USCIS notes that, as of October 1, 2007, Congress has not amended the "returning worker" provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) to cover FY 2008.

Until October 1, 2007, if a petition was approved only for the purpose of extending an alien’s stay in H-2B status, or only for change or addition of employers or a change in the terms of employment, the worker was not counted against the numerical limit at that time.  By contrast, an alien who changes nonimmigrant status to H-2B was generally counted against the annual H-2B cap.

Why does USCIS authorize more H-2B workers than the statutory limit?

USCIS adjudicates H-2B petitions based on the facts presented by the petitioner in the petition.  If the alien beneficiaries of the H-2B petition are abroad, USCIS then sends the approved petitions to the Department of State (DOS) for consular processing.  Employers, however, may decide after submitting an H-2B petition that the aliens on whose behalf it petitioned are no longer needed. In such cases, DOS will not issue the aliens an H-2B visa.  In other instances, some aliens never appear at the consular post for their H-2B visa interview following petition approval.   DOS may also deny some H-2B visa applications even though USCIS has approved petitions for these workers.  Similarly, DHS Customs and Border Protection (CBP) may determine at a port-of-entry that the beneficiary of an approved H-2B petition is inadmissible and refuse to admit the alien to this country. 

Because of such “drop outs,” the number of potential H-2B workers authorized to work by USCIS will exceed the actual number of visas issued based on petition approvals -- the basis of the statutory limit.

¹ Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations.
² A shortfall in the 1st half would be made up in the 2nd half.
³ Visas issued plus beneficiaries changing status already in the United States.

H-3

The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S. to receive training (other than graduate medical education or training). The training may be provided by a business entity, academic, or vocational institute. The H-3 nonimmigrant visa category also includes aliens who are coming temporarily to the U.S. to participate in a special education training program for children with physical, mental, or emotional disabilities. There is a limit of 50 visas per fiscal year allocated to H-3 aliens participating in special education training programs. As of November 29, 2007, one of these H-3 visas had been approved with a start date in FY 2007.