H1B CAP-Exempt

Maximum 65,000 H1B non-immigrant visas are issued per fiscal year, counted from October 1 to September 30. However, 6,800 out of these are reserved for Chile and Singapore under certain Free Trade Agreements between these countries and the United States. Therefore only 58,200 new H1B numbers are available each fiscal year. If there are any visa numbers that are unused under the Chile/Singapore quota, they would be used towards candidates that come under the regular cap.

Additionally, the Omnibus bill exempts up to 20,000 foreign nationals with Masters' degrees or higher from U.S. institutions of higher education from the H1B cap.

Following beneficiaries of approved H1B petitions are exempt from the H1B annual cap:

• An institution of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a).
• A non-profit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a).
• A non-profit research organization or a governmental research organization, as defined in 8 CFR 214.2(h) (19) (iii) (C).
• Beneficiary of this petition is a J-1 non-immigrant alien who received a waiver of the two-year foreign residency requirement described in section 214(1) (1)(B) or (C) of the Act.
• Beneficiary of this petition has been previously granted status as an H-1B non-immigrant in the past 6 years and not left the United States for more than one year after attaining such status.
• If the petition is to request a change of employer, the beneficiary previously worked as an H-1B for an institution of higher education, an entity related to or affiliated with an institution of higher education, or a non-profit organization or government research organization defined in questions 1, 2 or 3 above.
• Beneficiary of this petition has earned a master's or higher degree from a U.S. institution of higher education, as defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C. section 1001(a).

Above seven scenarios are listed in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, page 11)

Please note that an H-1B worker not previously counted toward the annual cap who leaves the employment of an institution of higher education or a related or affiliated non-profit entity to work as an H-1B at an employer other than those of type listed above will be counted toward the annual cap at that time.

When approval of an H-1B petition is revoked on the basis of fraud or the wilful misrepresentation of a material fact, one number shall be restored to the H-1B cap in the fiscal year in which the petition is revoked, regardless of the fiscal year in which the application was actually approved.