H-1B Fiscal Year (FY) 2019 Cap Season

The H-1B Program

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.  H-1B specialty occupations may include fields such as science, engineering and information technology.  For more information about the H-1B program, visit our H-1B Specialty Occupations Web page.

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How USCIS Determines If an H-1B Petition Is Subject to the FY 2019 Cap

We use the information provided in Sections 2 and 3 (or Part C) of the H-1B Data Collection and Filing Fee Exemption Supplement to help us determine if a petition is subject to the congressionally mandated cap of 65,000 H-1B visas (commonly known as the “regular cap”). An exemption from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher (commonly known as the “advanced degree exemption”) is available until the number of beneficiaries who are exempt on this basis exceeds 20,000. Sections 2 and 3 can be found on pages 19-21 of Form I-129.

FY 2019 H-1B Cap Count

Cap Type

Cap Amount

Cap Eligible Petitions

Date of Last Count

H-1B Regular Cap

65,000

94,213

April 6, 2018

H-1B Master’s Exemption

20,000

95,885

April 6, 2018

UPDATE: On April 6, 2018, USCIS reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the FY 2019 H-1B cap.

Cap Eligible Petitions

This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.

Cap Amounts

Congress set the current annual cap for the H-1B category at 65,000. Not all H-1B nonimmigrant visas are subject to this annual cap. Please note that up to 6,800 visas are set aside from the 65,000 each 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 visas in this group become available for H-1B use for the next fiscal year.

H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap (see the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229). H-1B workers in Guam and the CNMI are exempt from the H-1B cap if their employers filed the petition before December 31, 2019. Employers cannot file a petition or an extension request for an employee more than six months before the intended employment start date.

When to File an FY 2019 H-1B Cap-Subject Petition

We will begin accepting H-1B petitions that are subject to the FY 2019 cap on April 2, 2018. You may file an H-1B petition no more than six months before the employment start date requested for the beneficiary.

How to Ensure You Properly File Your H-1B Cap-Subject Petition

Please follow these steps:

  1. Complete all sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement.You can find the H Classification Supplement on pages 13-14 of Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement on pages 19-21. Current versions of forms are available at uscis.gov/forms.
  2. Make sure each form has an original signature, preferably in black ink. Ensure all signatures comply with Policy Memorandum PM-602-0134.1: Signatures on Paper Applications, Petitions, Requests, and Other Documents Filed with U.S. Citizenship and Immigration Services (PDF, 118 KB).
  3. Include signed checks or money orders with the correct fee amount.
  4. Submit all required documentation and evidence with the petition at the time of filing to ensure timely processing.
  5. Ensure that the Labor Condition Application (LCA) properly corresponds to the position in your petition.
  6. You must file the petition with the correct USCIS service center. See the section below on Where to Mail Your H-1B Cap-Subject Petition.

Note: It is your responsibility to ensure that Form I-129 is completed accurately and submitted properly.

Additional Documents Required With Your Petition

Labor Condition Application (LCA)

When filing your H-1B petition with USCIS, you must include a signed, certified Department of Labor LCA (ETA 9035). We will also accept a copy of the signed, certified LCA.Note: USCIS encourages petitioners to keep Department of Labor LCA processing times in mind when preparing the H-1B petition and to plan accordingly. If the LCA is certified for multiple workers, you must provide the name and USCIS case receipt number of any foreign worker who has previously used the LCA.

Please see the Department of Labor’s Office of Foreign Labor Certification website for more information on the LCA process.

Evidence of Beneficiary’s Educational Background

You must submit evidence of the beneficiary’s education credentials (with English translations when applicable) at the time you file your petition. If the beneficiary has met all of the requirements for a degree, but the degree has not yet been awarded, you may submit the following alternate evidence:

  • A copy of the beneficiary’s final transcript; or
  • A letter from the registrar confirming that the beneficiary has met all of the degree requirements. If the educational institution does not have a registrar, then the letter must be signed by the person in charge of educational records where the degree will be awarded.

If you indicate that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at the time you file your petition.

A Copy of the H-1B Petition

If the beneficiary will be applying for a nonimmigrant visa abroad, USCIS strongly encourages you to submit a copy of your H-1B petition and all supporting documents with your petition. If you receive a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) then you should also submit a copy of your response.

We also strongly encourage you to also submit a copy of the petition and any subsequent response to a RFE or NOID even if the beneficiary is requesting a change of status to H-1B or an extension of stay. This may assist the beneficiary if he or she later decides to seek a visa abroad or the H-1B petition is approved but the change of status or extension of stay request is denied.

If you do not submit a copy, this may delay processing for this petition or for the visa abroad.

You can check the Department of State website to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application. You can also check for any instructions specific to that consulate.

Multiple or Duplicative Filings

Employers may not file multiple or duplicative H-1B petitions for the same employee. To ensure fair and orderly distribution of available H-1B visas, we will deny or revoke multiple or duplicative petitions filed by an employer(including its related entities) for the same H-1B worker and will not refund the filing fees.

Where to Mail Your H-1B Petition

You must file your petition with the correct service center, depending on thepetitioner's primary work location. We have specific mailing addresses for cases that are subject to the H-1B cap. To determine where you must mail your petition, see our Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Note: We have a separate mailing address for certain types of educational or nonprofit organizations that file cap-exempt H-1B petitions.

Please read the filing instructions very carefully. If you file your petition at the wrong location, we may reject it. Rejected petitions will not retain a filing date and will not be counted toward the H-1B cap.

If you filed an FY19 H-1B cap petition in a timely manner, but received notification from the delivery service that suggests that there may be a delay or damage to the package, you may file a second H-1B petition with a new fee payment and the following:

  • An explanation why you are filing a second petition, with supporting evidence, such as the notice from the delivery service; and
  • A request to withdraw the first petition filed for the FY19 H-1B cap. 

If you do not include these items, we will consider you to have submitted duplicate filings. We will deny or revoke multiple or duplicative petitions filed by an employer (including its related entities) for the same H-1B worker in the same fiscal year and will not refund the filing fees. See also Delivery Service Error Guidance.

Required Fees

There are different fees depending on the type of H-1B petition you are submitting. Please refer to the H and L Filing Fees for Form I-129, Petition for a Nonimmigrant Worker  page for detailed instructions on H-1B fees. All petitioners must pay a base filing fee for each petition filed. Go to the Form I-129, Petition for a Nonimmigrant Worker web page for the current filing fee amount. 

In addition to the base filing fee, you may need to pay one of the following fees for a petition subject to the cap:

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:

  • $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
  • $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

The ACWIA fee information is available in Section 2 of the H-1B Data Collection and Filing Fee Exemption Supplement on pages 19-21 of Form I-129.

Fraud Prevention and Detection fee:

  • $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)

Public Law 114-113 fee:

  • $4,000 for petitioners who:
    • Employ 50 or more employees in the United States and more than 50% of those employees are in H-1B or L-1 nonimmigrant status. You must submit this fee with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers

Checks

Check must be:

  • Payable to the Department of Homeland Security;
  • Dated within the last six months; and
  • Include the proper amount and signature.

We prefer that you submit a separate check for each fee. For example, if you are required to pay the base filing fee, the fraud fee, the ACWIA fee, and the premium processing fee, you should submit four separate checks. If you only submit one check as combined payment for all applicable fees and certain fees do not apply or are incorrect, we will reject your H-1B petition.

Money Orders

Money orders must be properly endorsed.

Incorrect Filing Fee

We will reject all petitions submitted with the incorrect filing fee.

Premium Processing Service

We will announce the start date for premium processing in the near future.

Organizing Your H-1B Package

Clearly label all H-1B cap cases, preferably in red ink, on the top margin of Form I-129. Use the following codes:

  • Write “Regular Cap” on petitions subject to the 65,000 regular cap, not including Chile/Singapore cap cases.
  • Write “C/S Cap” on Chile/Singapore H-1B1 cases.
  • Write “U.S. Master’s” on petitions subject to the 20,000 exemption for beneficiaries with U.S. master’s degrees or higher.

A separate check is preferred for each filing fee (Form I-129, Fraud Fee, ACWIA fee, and Public Law 114-113). Staple checks to the bottom right corner of the top document.

Preferred order of documents at time of submission:

  1. Form G-28 (if represented by an attorney or accredited representative)
  2. Form I-129, Petition for a Nonimmigrant Worker
  3. Addendums/Attachments
  4. H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions)
  5. H-1B Data Collection and Filing Fee Exemption Supplement
  6. All supporting documentation to establish eligibility. Provide a table of contents for supporting documentation and separate the items as listed in the table.
  7. Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
  8. SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
  9. SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
  10. Form I-566 if the beneficiary is a current A or G nonimmigrant
  11. Department of Labor certified LCA, Form ETA 9035
  12. Employer/attorney/representative letter(s)
  13. Other supporting documentation
  14. Copy of the petition, if necessary. Clearly mark it as “COPY” so that it is not mistaken for a duplicate filing.

How to mail multiple petitions together

If you will include multiple petitions in the same package, please place the individual petitions into separate envelopes within the package. Mark the individual petition envelopes with the following labels to identify the type of petition:

  • Master’s
  • Regular
  • Chile/Singapore

Filing Tips

Form G-28, Notice of Entry of Appearance as Attorney or Representative

If the petitioner will be represented by an attorney or other accredited representative, submit a properly completed Form G-28, Notice of Entry of Appearance as Attorney or Representative. Please make sure you file one of the most recent versions of the Form G-28 (edition date: 05/05/2016 or 03/04/2015). For further information on Form G-28, please see our Filing Your Form G-28 page.

Form I-129, Petition for a Nonimmigrant Worker

  • Complete all sections of the form accurately.
  • H-1B cap petitions and advanced degree exemption petitions for the FY 2019 cap must include an employment start date of no earlier than October 1, 2018. Do not file petitions earlier than six months before the requested employment start date. We will reject H-1B petitions requesting an earlier employment start date or a start date of “As Soon As Possible” or “ASAP.”
  • Ensure that the petition is properly signed. 
  • Petitioners should enter their own address in Part 1, question 3 of the Form I-129. This will ensure that the I-797 receipt and approval notices are sent to the petitioner and, if applicable, to the attorney/representative.

Please note: Using an address other than the petitioner’s address as the mailing address may cause processing delays related to USCIS’s Validation Instrument for Business Enterprises (VIBE). VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If petitioners use an attorney’s address on the Form I-129 petition, include a cover letter that clearly indicates the current address of the petitioner. This information will assist immigration services officers in completing a manual check in VIBE using the petitioner’s address. If a petitioner uses an attorney’s address as their mailing address on the form, then the petitioner will not receive any Form I-797 notices.

  • Ensure that the beneficiary’s name is spelled properly and that his or her date of birth is displayed in the proper format (mm/dd/yyyy). Also, review the country of birth and citizenship and the I-94 number (if applicable) for accuracy.
  • If the beneficiary will seek a visa at a consular office abroad, include a copy of the petition and supporting documentation with the filing. For cases where the beneficiary will seek a change of status or extension of stay in the United States, you may still submit a copy. You may choose to do this in case the beneficiary decides to seek a visa at a consular office abroad after the change of status or extension of stay is approved.
  • If the beneficiary is seeking an extension of stay or change of status, the petition should include evidence (such as a Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
  • The petitioner should include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129

  • You can find the H Classification Supplement on pages 13-14 of Form I-129.
  • Please be sure to complete all sections of the form accurately.
  • In listing previous periods of stay in H or L nonimmigrant classification (question 3), please also include the actual nonimmigrant classification held (such as H-1B or L-1).
  • The petitioner must sign the form, preferably in black ink.

H-1B Data Collection and Filing Fee Supplement

  • You can find the H-1B Collection and Filing Fee Supplement on pages 19-21 of Form I-129.
  • Please be sure to complete all sections of the form accurately.
  • Make sure the Form I-129 has a revision date of Oct. 23, 2014, or later.
  • Be sure to answer if the beneficiary has earned a master’s degree or higher from a U.S. educational institution as defined in 20 U.S.C. 1001(a).  Answer in the below sections in the H-1B Data Collection and Filing Fee Exemption Supplement on pages 19-21.
    • Section 1, question 2, and Section 3, question 2
  • If you answer “No” to the question about whether the beneficiary will be assigned to work at an off-site location, then you do not need to respond to the remaining two questions in the section. This is the first question in Section 4 on page 21.

Delivery Service Error Guidance

If you filed an H-1B cap petition in a timely manner but received notification from the delivery service that suggests that there may be a delay or damage to the package or that the package was misrouted, you may file a second H-1B petition with a new fee payment and the following:

  • An explanation as to why a second petition is being filed, with supporting evidence, such as the notice from the delivery service; and
  • A request to withdraw the first petition filed for the H-1B cap.

If you do not include these items, you will be considered to have submitted duplicate filings. USCIS will deny or revoke multiple or duplicative petitions filed by an employer (including its related entities), for the same H-1B worker in the same fiscal year and will not refund the filing fees.

If the cap is met within the first five business days of April, USCIS will reject any petitions received after the cap is met, including second H-1B petitions filed because of a delivery service mishandling as described above.

In addition, if you submit a second H-1B petition and withdraws the first, USCIS will not adjudicate the withdrawn petition and will return it to you regardless of whether the petition has already been receipted.

 

 

Find this page http://www.uscis.gov/h-1b_count

 

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