What is the H-1B and H-2B Cap, and how does it affect you?

The “Cap” question keeps popping up in our minds, but what exactly is the “Cap?”

The cap refers to the annual numerical limitations set by Congress on the number of workers authorized to be admitted on different types of visas or authorized to change status if already in the United States. Some of the visas with their current annual cap are listed below.


U.S. businesses utilize the H-1B program to employ foreign workers in specialty occupations that require a body of theoretical knowledge and/or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. Congress has limited the number of new individuals that can enter the US in the H-1B category to 65,000 per year. This 65,000 includes the 6,800 H-1B1 visas that have been carved out for Chile and Singapore. The cap for fiscal year 2008 (Oct 1, 2007 to Sept 30, 2008) of 58,200 was reached on the date of last count i.e. April 2, 2007, which, incidentally, was the first day that H-1B petitions could be filed for FY2008.

Not all H-1B petitions are covered under the cap rules. Those not covered by the cap include “current workers” and certain aliens who will be employed at institutions of higher education or related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Petitions for current workers are petitions filed to: extend the amount of time a current H-1B worker may remain in the United States; change the terms of employment for current H-1B workers; allow current H-1B workers to change employers; and allow current H-1B workers to work concurrently in a second H-1B position.
Cap-Exempt H-1B Petitions:

In addition to the H-1B cases noted above that are not covered by the cap, the H-1B Visa Reform Act of 2004, established an exemption for the first 20,000 H-1B petitions filed on behalf of aliens who have earned a masters’ or higher degrees from a US institution of higher education. Unfortunately, these like the regular H-1B petitions are used up quickly. Cap has been reached on April 30 2007, the last date USCIS has reported.

Of the 65,000 new H-1B visas available, 6,800 visas are set aside during the 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. An H-1B1 is a national of Chile or Singapore coming to the Unites States to work temporarily in a specialty occupation. The beneficiary must have a bachelor’s degree relating to the job offer. Unused visa numbers in this pool can be made available for regular H-1B use with start dates beginning on October 1, 2007, the start of FY 2008. USCIS has added 5,800, the projected number of unused FY 2007 H-1B1 Chile/Singapore visas to the FY 2008 H-1B cap


The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs, and one-time needs, to augment their existing labor force with temporary workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. The H-2B numerical limit set by Congress per fiscal year is 66,000. However, like the H-1B category, certain aliens are not counted against the cap. For the H-2B category that is any person who is a “returning worker.” The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) defines “returning workers” (at least through the end of FY2007) as workers who were counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. For example, this means that for a petition with a work start date after October 1, 2006 (FY 2007), the worker must have been previously approved for an H-2B work start date between October 1, 2003 and September 30, 2006.


The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S. to receive training (other than graduate medical education or training). The training may be provided by a business entity, academic, or vocational institute. While the H-3 category itself does not have any numerical limits there is a limit of 50 visas per fiscal year allocated to H-3 aliens participating in special education training programs. As of April 2, 2007, only 4 of these H-3 visas had been approved with a start date in FY 2007.

Relief on the horizon for the H-1B cap?

While nothing is set in stone (which is impossible with the US Congress until a bill is passed and signed by the President), several bills have been introduced which would bring some much needed relief from the current low cap numbers. In the weeks leading up to the first day for filing H-1B petitions for FY2008 there was much discussion in Congress regarding immigration reform. Shortly after the H-1B cap was reached for FY2008 Senator John Cornyn (R-TX) and Senator Chuck Hagel (R-NE) introduced the SKIL Act and the High-Tech Worker Relief Act respectively. Both bills are aimed at reforming U.S. visa programs for highly skilled foreign workers or providing temporary relief from the H-1B cap.

SKIL Act (S. 1083):

Senator Cornyn, chairman of the Immigration, Border Security and Citizenship subcommittee, introduced the SKIL Act on April 10, 2007. The SKIL Act would increase the H-1B cap and reform both H-1B visa and employment based green card processes, making it easier for employers to recruit and retain highly skilled workers. The bill would also exempt from the annual H-1B cap any professional who has earned a post-graduate degree, including medical specialties, from an accredited United States university. The bill raises the H-1B cap and reduces paperwork burdens on employers and professional workers who have a demonstrated record of complying with immigration laws.

High-Tech Worker Relief Act (S. 1092):

Senator Chuck Hagel (R-NE) introduced the High-Tech Worker Relief Act on April 11, 2007. Unlike the broader provisions of the SKIL Act, this bill focuses more narrowly on providing temporary relief from the H-1B cap, albeit only for 2 years. It does however expand the exemptions for aliens with US post-graduate degrees by removing the 20,000 limit.


The STRIVE Act of 2007, introduced by Representatives Luis Gutierrez (D-IL) and Jeff Flake (R-AZ) on March 22, 2007, is a bipartisan comprehensive immigration reform bill. Section 507 of the Act, dealing with H-1B visas, would increase the number of visas available each year to 115,000. While this is not the 195,000 we had just a few years ago it is certainly better than the 65,000 that we currently have. Section 507 also has a provision that will tie the number of visas to market conditions that could raise the number as high as 180,000. The STRIVE Act also makes all aliens with an advanced degree in science, technology, engineering, or math from a US or foreign institution of higher education exempt from the cap.


With the H visa Caps playing such a large role in being able to bring employees to the US it is wise for employers to start planning early, and to consider other visa categories, including the L-1, J-1, E, O, and P visas.

Contact VisaPro if you have any questions regarding work visas.

VisaPro covers the latest happenings on employment visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.