What is a Visa Transfer Cap?
A limited number of foreign-born citizens can enter the United States annually on H-1B work visas. The program allows American employers to hire nonimmigrant aliens and sponsor them into the country.
However, only applicants in specialized industries and professions can apply for visas. Some professions are exempt from the cap limit. Once approved, a cap-exempt visa can be transferred from one employer to another.
If transferring from a cap-exempt position to a non-exempt position, the applicant will be placed in the visa lottery.
Who Can Petition for a Visa Under a Regular Cap?
There are two main types of visa applications for the cap system. The Regular cap, also known as the non-advanced degree cap, is the most basic cap. Basically, any foreign citizen who has a Bachelor’s degree but doesn’t have an advanced degree falls under the Regular cap.
The H-1B visa Advanced Degree cap is only for foreign citizens who have an advanced degree from an American university. The equivalent advanced degree from a university outside the United States does not qualify for the Advanced Degree cap.
Unfortunately for Regular cap applicants, petitions from advanced degree holders who aren’t chosen in the Advanced Degree cap lottery are re-entered into the Regular cap lottery.
Advanced Visa Caps
Advanced visas are open to applicants who hold a Master’s degree or higher from an institution in the United States. In the Regular cap, a foreign institution’s equivalent of a Bachelor’s degree is acceptable.
That is not the case in the advanced cap. The advanced degree must come from an American university.
As previously mentioned, applicants with a Master’s degree or higher who aren’t selected from the Advanced Degree cap get a second chance at getting a visa. Their petitions then go into the Regular cap lottery, where they have a higher chance of being selected than those without advanced degrees.
Visa Caps By the Numbers
The USCIS granted 131,970 visas out of 308,613 visa registrations for the 2022 fiscal year. That number is composed of both Regular and Advanced Degree caps and cap-exempt visa holders.
65,000 visas are granted annually to applicants to fill the Regular cap quota. An additional 20,000 visas are given to those applying in the Advanced Degree category.
Regular and Advanced Degree caps combined total around 85,000 visas, so how is the number of visas granted well over 100,000?
Certain employers, such as hospitals and non-profits, are exempt from the cap limits.
The Lottery System
The USCIS system for granting H-1B visas is informally called a ‘lottery.’ However, the U.S. government refers to it as a random selection. The selection process is completed during the fiscal year, which runs from October 1 through September 30.
The H-1B visa process begins in March when the initial registration window opens for just 14 days. During this step, the applicant registers online and pays the $10 registration fee.
Registrants who are chosen from the initial registration move on to the application process.
According to the USCIS website, three random selection processes in the 2022 fiscal year were needed to meet the numerical allocations. The initial lottery selected 87,500 registrations. Subsequent random selections in July and November of 2021 were necessary due to a low number of initial selections meeting filing deadlines.
If registrants are chosen in the initial lottery, the next step is to file petitions in either the Regular cap or the Advanced Degree cap categories.
The quota for the Advanced Degree cap is met first through a computer-generated random selection. Applicants with advanced degrees who aren’t selected are then added to the applicants from the Regular cap.
These combined applicants are then randomly selected in a second lottery.
Cap-Exempt Status
The visa caps bind most, but not all, H-1B applicants. Some employers in the U.S. are exempt from the cap limit, known as cap-exempt status
Another bonus to cap-exempt status is applicants have more leeway for petition deadlines. Those applying under the Regular or Advanced Degree cap have a limited time to submit their petition and accompanying documents.
However, those petitioning under the cap-exempt banner can file at any time of the year, regardless of the fiscal year deadlines.
Which employers fall under cap-exempt status?
● Higher education institute
● Non-profit research organization affiliated with a higher education institute.
● Other non-profit or government research organizations
Cap-exempt visas are good for three years. After three years, the visa holder can apply for another three-year extension. Employers sponsoring a cap-exempt visa can opt for premium processing.
While the premium process doesn’t guarantee a visa, it can cut down the process from four months to 15 days. The employer is reimbursed for all fees if the premium processed visa application is ultimately refused.
If you’ve been granted a cap-exempt H-1B visa and want to change employers, your H-1B visa will transfer to another cap-exempt employer.
However, the visa doesn’t transfer to an employer that isn’t exempt from the cap, meaning that the employer would need to file a new petition, which would then be entered into the Regular cap or Advanced Degree cap lottery.
What’s Next?
Your initial registration application was randomly selected to enter the Regular or Advanced Degree cap. Getting all your documents submitted before the deadline closes in April is essential, though your prospective job won’t start until October 1. If a cap-exempt employer sponsors your visa application, the waiting process will be shortened by months.
Cap limits and cap exemptions can be confusing. Visa2US is ready to help you figure out your best options for making sure your application is in the correct lottery or help you find cap-exempt employer listings. The immigration system is complex to maneuver alone. Visa2US can help you navigate it.
