H-1 Masters Cap Still Open | Immigration Alert

USCIS has announced that, as of April 9, 2007, about a total of approximately 12,989 cases requesting an exemption from the FY 2008 H-1B cap because they were filed on behalf of aliens holding a master’s degree or higher from a U.S. institution. This leaves about 7,000 slots still available for aliens who have graduated from US institutions and hold Masters degrees.

In related news, USCIS also announced, as of April 9, that approximately 119,193 of the H-1B petitions received on April 2 and 3 are subject to the FY 2008 congressionally mandated cap. The press release does not explain whether or not this is all H-1B petitions or just the ones that USCIS has opened at this time.

Employers should keep in mind that there are several options available for cases that were shut-out as a result of the H-1(b) cap.

- As mentioned above, if the Beneficiary for employment is a graduate of a US Masters degree (or higher) program, a case may still be filed. There is a separate category for these candidates. You can monitor the progress of this quota on the USCIS' web site, here:

USCIS H-1 Quota Web Page

- Chilean and Singaporean nationals have 6,800 visas 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. In the past, this quota has never been reached.

- Certain non-profit research organizations and higher education institutions are exempt from the general and Masters H-1(b) quotas.

- Canadian nationals may be petitioned under the TN visa classification provided by the NAFTA agreements. There is no annual quota on TN cases. There is a discrete list of TN occupations that are eligible, which can be found here:

TN Occupations Listing

- Australian nationals may be eligible for the E-3 visa, which is generally eligible to all Australians who would otherwise qualify for an H-1(b).

- Physical Therapists may find it quicker to apply for a Permanent Residency visa (green card), than to wait for the H-1(b) quota to come back on-line. Similarly, Extraordinary-Ability Workers, Outstanding Researchers and persons whose work is in the National Interest all qualify for expedited Permanent Residency.

- Many other visa categories - e.g. E, L, and O - do not have annual quotas. These may be available options. You can learn about these categories here: http://www.hammondlawfirm.com/business_visas_main.htm

Employers also should note that "cap-subject" H-1(b) visas are only those cases for new hires, who have never previously held H-1(b) petitions. For instance, students, off shore hires, and those wishing to change from another visa classification are subject to the quota. "Company transfer" H-1(b) visas are NOT subject to the cap.