Am I subject to the H1B cap?

There are a total of 85,000 new cap-subject H1B visas available every year. Of these:

  • 20,000 are reserved for holders of advanced degrees granted by accredited US universities, and 
  • 6,800 are reserved for applicants from Chile and Singapore,
  • leaving 58,200 available in the general pool.
In recent years, 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.

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 years 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 a while 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 years minus 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 both 1) physically in the US and 2) in H1B status.

The 6-year clock stops any time you physically leave the US or switch to a different status.
  • 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 H1B status for 2 years and then returned to your home country for 5 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.
  • If you worked in the US for H1B status for 2 years and then changed to F1 status to pursue a master's degree followed by OPT, you will still have 4 years of H1B status left to use without needing to go through the lottery again when your OPT runs out.

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 us a message or schedule an appointment.