H-1B Cap: USCIS Criteria for Petition Evaluation
Understanding the H-1B Cap:
The H-1B visa program has an annual cap, which limits the number of new H-1B visas issued each fiscal year. As of my knowledge cut-off in January 2023, the regular cap is set at 65,000 visas, with an additional 20,000 visas reserved for individuals with advanced degrees from U.S. institutions. Once this cap is reached, USCIS stops accepting new petitions subject to the cap for that fiscal year.
Exemptions and Exclusions:
Certain H-1B petitions are exempt from the annual cap, providing an alternative route for employers and foreign workers. Exemptions include petitions filed by institutions of higher education, non-profit research organizations, and governmental research organizations. Additionally, individuals who have already been counted against the cap in the past six years are generally exempt from the cap in subsequent filings.
USCIS Lottery System:
When the number of H-1B petitions exceeds the available cap, USCIS employs a random lottery system to select the petitions that will move forward for adjudication. The lottery is conducted separately for the regular cap and the advanced degree exemption. This random selection process is designed to ensure fairness and equal opportunity for all eligible petitions.
Determining Cap-Subject Petitions:
To understand whether an H-1B petition is subject to the cap, it’s essential to consider the following factors:
Fiscal Year Quota:
USCIS designates a specific fiscal year quota for H-1B cap-subject petitions. It is imperative to file the petition within the designated filing period, usually the first five business days of April, to be considered for the upcoming fiscal year.
Employer and Beneficiary Eligibility:
The employer must ensure that both the sponsoring employer and the prospective H-1B employee meet the eligibility criteria. This includes verifying that the position qualifies as a specialty occupation and that the beneficiary possesses the required education and experience.
Proper Form and Documentation:
USCIS requires the submission of the appropriate form, typically Form I-129, Petition for a Non-immigrant Worker, along with supporting documentation. Failure to provide complete and accurate information may result in the rejection of the petition.
Conclusion:
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FAQ`s:
The H-1B cap refers to the numerical limit set by the U.S. government on the number of H-1B visas issued each fiscal year. It is significant in USCIS petition evaluation because once the cap is reached, USCIS stops accepting new H-1B petitions for that fiscal year.
USCIS evaluates an employer’s eligibility for filing an H-1B petition based on factors such as the employer’s compliance with labor condition application requirements, the existence of a bona fide employer-employee relationship, and the availability of specialty occupation work for the H-1B beneficiary.
A specialty occupation is a position that requires specialized knowledge and a bachelor’s degree or higher in a specific field. USCIS assesses whether a position qualifies as a specialty occupation by examining the job duties, educational requirements, and industry standards to determine if the position meets the criteria for H-1B eligibility.
The prevailing wage is the average wage paid to similarly employed workers in a specific occupation and geographic area. USCIS requires employers to pay H-1B workers at least the prevailing wage to prevent the undercutting of U.S. wages. USCIS evaluates the offered wage to ensure it meets or exceeds the prevailing wage for the specified position.
When H-1B petitions exceed the annual cap, USCIS conducts a lottery to randomly select petitions for processing. If a petition is not selected in the lottery, it is returned to the petitioner along with the filing fees. Unselected petitions do not move forward in the adjudication process for that fiscal year.
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