H-1B and H-2B Cap Exemption for Guam and the CNMI Ends December 31, 2014
The Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, included a provision that exempted H-1B and H-2B nonimmigrant workers performing labor or services in the CNMI and Guam from the Congressionally-mandated H-1B and H-2B annual numerical limitations (the “cap”) from November 28, 2009 to December 31, 2014. After December 31, 2014, H-1B and H-2B nonimmigrant workers performing labor or services in the CNMI and Guam will no longer be exempt from the H-1B and H-2B annual cap. All H-1B or H-2B petitions for workers in Guam or the CNMI received on or after January 1, 2015, or (if received before that date) with employment start dates on or after January 1, 2015, will be subject to the annual H-1B or H-2B cap unless otherwise exempt.
Filing a H cap-exempt petition
Employers in the CNMI and Guam may still file a cap-exempt petition if:
- They file a new or extension H-1B or H-2B nonimmigrant worker petition by December 31, 2014, and do so according to the filing instructions for Form I-129 Petition for a Nonimmigrant Worker.
- The employment start date for the worker’s labor or services is on or before December 31, 2014.
- They file the petition requesting an extension of the worker’s status before the worker’s current approved status expires.
All H-1B petitions received after December 31, 2014, will be subject to the H-1B cap unless otherwise exempt.
- Regular annual cap: 65,000 H-1B visas are available each fiscal year (FY) (October 1 – September 30).
- U.S. Master’s Exemption cap: An additional 20,000 H-1B visas are available each year for workers with a master’s degree or higher from a U.S. institution of higher education.
Exemptions from the H-1B cap
- Under the normal H-1B process, H-1B extension petitions are exempt from the annual cap. But this is only if the initial H-1B was previously subject to the regular annual cap and the beneficiary was already counted against an annual H-1B cap, or if another cap exemption applies.
H-1Bs granted in the CNMI and Guam under the exemption were never previously counted against the cap because they were exempt based on the statute. That is why the petitions have to be receipted by December 31 or earlier in order to continue to benefit from the expiring cap exemption.
- New H-1B petitions are exempt from the cap if the beneficiary will be employed at a nonprofit institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit or governmental research organization.
When to file H-1B petitions
- Cap-exempt petitions: Employers in the CNMI and Guam do not need to wait until the original petition and the worker’s status are about to expire. As long as the employment start date requested on the petition is on or before December 31, 2014, employers may file a cap-exempt extension petition on or before December 31, 2014, even if the worker’s current H-1B status will be valid for more than 6 months from that filing date.
If USCIS approves the extension, USCIS may grant the new H-1B petition for up to 3 years from the new requested start date, not from the date the current H-1B status expires. For example, if a person’s current H-1B status expires on August 1, 2015, and the employer files a cap-exempt petition requesting a December 31, 2014 start date, the approved petition’s expiration date may be as late as December 31, 2017.
- Petitions subject to the cap: The FY 2015 H-1B cap has been reached. Therefore, USCIS will reject all cap-subject petitions for a new or extended H-1B nonimmigrant worker that it receives after December 31, 2014.
USCIS will begin accepting H-1B petitions that are subject to the FY 2016 cap on April 1, 2015. If a Form I-129 petition for the H-1B classification is approved, then the earliest the H-1B worker may begin to work in Guam or the CNMI would be October 1, 2015.
All H-2B petitions received after December 31, 2014, will be subject to the Congressionally-mandated cap.
- 66,000 H-2B visas are available each fiscal year and are allocated as follows:
- October 1 to March 31: 33,000 visas are available.
- April 1 to September 30: 33,000 visas are available, along with any unused visas from the first half of the fiscal year.
- There is no "carry over" of unused H-2B numbers from one fiscal year to the next.
When to file H-2B petitions
USCIS anticipates that FY 2015 H-2B visas will still be available for petitioners filing on or after January 1, 2015, but this is subject to demand.
For general information about the H-2B classification and the H-2B cap, please see the Cap Count for H-2B Nonimmigrants and Countries Whose Nationals are Eligible for H-2A and H-2B Participation Web pages.