H-1B Fiscal Year (FY) 2021 Cap Season

Alert: On March 20, 2020, USCIS announced that premium processing would resume for Form I-129 and Form I-140 petitions in phases over the month of June. Read more here: USCIS Resumes Premium Processing for Certain Petitions.


Alert: Petitioners should expect a delay in data entry and receipt notice generation for fiscal year 2021 H-1B cap-subject petitions until at least May 1, 2020, due to the impacts of the coronavirus (COVID-19).

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, and fields such as teaching and accounting. For more information about the H-1B program, visit our H-1B Specialty Occupations webpage.

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How USCIS Determines if an H-1B Petition Is Subject to the FY 2021 Cap

We use the information provided during the electronic registration process 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.

FY 2021 H-1B Cap Count

Cap Type

Cap Amount

Cap Eligible Petitions

Date of Last Count

H-1B Regular Cap

65,000

 

 

H-1B Advanced Degree Exemption

20,000

 

 

Congress set the current annual cap for the H-1B category at 65,000. Not all H-1B nonimmigrant visas (or status grants) 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 file the petition before Dec. 31, 2029. 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 2021 H-1B Cap-Subject Petition

FY 2021 H-1B cap-subject petitions, including those eligible for the advanced degree exemption, may not be filed unless based on a valid registration for the beneficiary named in the petition.

For registrations we selected, we will begin accepting H-1B petitions that are subject to the FY 2021 cap on April 1, 2020. You may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. The specific filing period for your petition will be located on your H-1B Registration Selection Notice.

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

  1. Complete all required sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement in accordance with the regulations and form instructions. You can find the H Classification Supplement beginning on page 15 of Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement beginning on page 21. Current versions of forms are available at uscis.gov/forms.
  2. If your selected registration was submitted during the initial registration period of March 1 to March 20, you must indicate a start date of Oct. 1, 2020, on your petition or your petition will be rejected or denied.
  3. You must provide a copy of the H-1B Registration Selection Notice for the registration filed by your organization on behalf of the beneficiary included in the petition. Ensure that you have also entered the corresponding “Beneficiary Confirmation Number” on the H Classification Supplement (Page 15, Question 5).
  4. Ensure that any information provided during the electronic registration process matches the information provided on the petition. If any information does not match, you should provide an explanation with your petition and supporting documentation as to why there was a change or why the information does not match. If information on the registration and petition does not match, USCIS may reject or deny the petition. USCIS encourages the use of a brightly colored coversheet flagging the issue as a good way to ensure that this is reviewed upon receipt.
  5. 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).
  6. Include signed checks or money orders with the correct fee amount. Please submit separate checks for each fee associated with the filing.
  7. Submit all required documentation and evidence with the petition at the time of filing to ensure timely processing.
  8. Ensure that the Labor Condition Application (LCA) properly corresponds to the position in your petition.
  9. 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 evidence that an LCA (ETA 9035) has been certified by the U.S. Department of Labor. This may include 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 was previously submitted in a petition that has been approved, you must submit a list including the name and USCIS case receipt number of any foreign worker who has previously used the LCA. You may not use an LCA for more workers than specified in Part B, Question 7 of 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, we strongly encourage 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 submit a copy of the petition and any subsequent response to an 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 with consular processing 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. For additional information, please see PM-602-0159, Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018) (PDF, 123 KB).

 

Where to Mail Your H-1B Petition

 

You must file your petition with the correct service center, as indicated on your Registration Selection Notice. We have specific mailing addresses for cases that are subject to the H-1B cap. To determine the correct mailing address for the service center named on your Registration Selection Notice, see our Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Please read the filing instructions carefully. If you file your petition at the wrong location, we may reject it. Rejected petitions will not retain a filing date. You are eligible to refile your rejected petition during the designated 90-day filing window on their Registration Selection Notice.

 

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. See 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

Checks 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, and the ACWIA fee, you should submit three 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

Petitioners filing FY 2021 cap-subject H-1B petitions will not able to request premium processing when USCIS begins accepting cap-subject petitions on April 1. USCIS has temporarily suspended premium processing service for FY 2021 cap-subject H-1B petitions. Until premium processing resumes, USCIS will reject any Form I-907 concurrently filed with a cap-subject H-1B Form I-129.

As USCIS has done in the past, premium processing service will resume in a two-phased approach so that USCIS can best manage premium processing requests. The first phase will include FY 2021 cap-subject H-1B petitions, including those eligible for the advanced degree exemption, requesting a change of status from F-1 nonimmigrant status. The second phase will include all other FY 2021 cap-subject H-1B petitions.

This temporary suspension is similar to last year’s suspension and will help us reduce overall H-1B processing times.

USCIS will resume premium processing for FY 2021 cap-subject H-1B petitions requesting a change of status from F-1 nonimmigrant status no later than May 27, 2020, and will notify the public before premium processing resumes for these petitions. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129, and indicate “F-1” for Item 5, “Current Nonimmigrant Status” in Part 3 of Form I-129 to be eligible to file a Form I-907 as part of this first group.

The earliest date that USCIS will resume premium processing for all other FY 2021 cap-subject H-1B petitions is June 29, 2020.

Petitioners filing FY 2021 H-1B cap-subject petitions will be eligible to upgrade to premium processing by filing Form I-907 once premium processing resumes, as applicable. USCIS will notify the public with a confirmed date for resuming premium processing for FY 2021 H-1B cap-subject petitions.

At this time, premium processing remains available for H-1B petitions that are exempt from the cap, such as extension of stay requests.

Organizing Your H-1B Package

Preferred order of documents at time of submission:

  1. Form G-28 (if represented by an attorney or accredited representative)
  2. Copy of the Registration Selection Notice for the Beneficiary Named in the Petition
  3. Form I-129, Petition for a Nonimmigrant Worker
  4. Addendums/Attachments
  5. H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions)
  6. H-1B Data Collection and Filing Fee Exemption Supplement
  7. All supporting documentation to establish eligibility. Provide a table of contents for supporting documentation and separate the items as listed in the table.
  8. Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
  9. SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
  10. SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
  11. Form I-566 if the beneficiary is a current A or G nonimmigrant
  12. Department of Labor certified LCA, Form ETA 9035
  13. Employer/attorney/representative letter(s)
  14. Other supporting documentation
  15. 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.

Filing Tips

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

If you 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. 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 required sections of the form accurately and in accordance with the regulations and form instructions.
  • H-1B cap petitions and advanced degree exemption petitions for the FY 2021 cap must include an employment start date of no earlier than Oct. 1, 2020. If your selected registration was submitted during the initial registration period of March 1 to March 20, you must indicate a start date of Oct. 1, 2020, on your petition or your petition will be rejected or denied. 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 you have entered the “Beneficiary Confirmation Number” on the H Classification Supplement (Page 15, Question 5).
  • 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.
  • While not required information if the beneficiary is outside the United States, you may include the beneficiary’s passport number on the Form I-129. The passport number, when available and included on the Form I-129, may help USCIS to confirm that the beneficiary named in the registration notice is the same individual as the beneficiary named in the petition and avoid processing delays.
  • 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.
  • Ensure that any information provided during the electronic registration process matches the information provided on the petition. If information between the registration and petition does not match, the petition may be rejected or denied. If any information does not match, you should provide a written explanation and supporting documentation as to why there was a change or why the information does not match.
  • 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.
  • Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129

  • You can find the H Classification Supplement beginning on page 15 of Form I-129.
  • Please be sure to complete all required sections of the form accurately and in accordance with the regulations and the form instructions.
  • 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 beginning on page 21 of Form I-129.
  • Please be sure to complete all sections of the form accurately.
  • Make sure the Form I-129 has an edition date of 1/27/20, or later.

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, during the designated 90-day filing window on your Registration Selection Notice 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 petitions. USCIS will deny or revoke multiple or duplicative petitions filed by the same petitioner, for the same H-1B worker in the same fiscal year and will not refund the filing fees.

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

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