Hammond Law Group, LLC

The H-1B nonimmigrant visa category was created in 1990 through the Nationality
and Immigration Act of 1990. To qualify for an H-1B the job must require a
bachelor’s degree or equivalent and the foreign national must have a bachelor’s
degree or equivalent in a field of study that is related to the job.

When the H-1B category was created, the law imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year. This “cap” was initially limited to 65,000 per year. However, by the late 1990’s it was evident that the 65,000 cap was not sufficient to meet labor needs. Therefore, through two 1B legislative acts (in 1998 and 2000) Congress increased the cap as follows:

- 1999: 115,000
- 2000: 115,000
- 2001: 195,000
- 2002: 195,000
- 2003: 195,000

The second H-1B legislative act, known as the American Competitiveness in the 21st Century Act (AC21), provided that the H-1B cap would revert back to 65,000 in the fiscal year 2004. Since 2004, the cap has remained at the 65,000 limit, despite the steadily increasing demand for H-1B visas. On May 5, 2005, the H-1(B) Visa Reform Act went into effect providing for an extra 20,000 H-1B visas to be available to foreign nationals graduating with a US Master’s or higher degree from a US institution. These 20,000 will be counted in addition to the Congressionally mandated annual cap of 65,000 visas.

The H-1B cap applies only to petitions where the foreign national is not currently in the US and is applying for a job that is in the US (i.e. “new employment”), or where the foreign national is in the US on a different status (e.g. F visa, L visa) and has never held an H-1B visa in the past six years. Certain petitions are exempt from the cap. These petitions include, but are not limited to: H-1B petitions where the terms of employment have changed (e.g. job location, job duties, etc…), petitions for extension of H-1B status for an existing employer, petitions for extension of H-1B status for a new employer, and petitions for new employment at an exempt organization (e.g. institution of higher learning, some nonprofit organizations, or governmental research organization). Since most of these exemptions are complex, consult with your attorney on whether your case is subject to the cap and whether you are eligible for one of the exemptions (Singaporean and Chilean H1b or Master’s cap exemption).