Who is not Subject to H-1B Cap? (Ⅰ)

It should come as no surprise that there continues to be some major issues with the H-1B program. The H-1B program is designed to allow US employers to hire foreign nationals to fill highly specialized positions within the US workforce. These positions, in specialty occupations require the foreign national employee to have theoretical and technical expertise in their field of expertise. While the US Citizenship and Immigration Services (USCIS) is the primary administrator of the H-1B program, other agencies within the Department of Homeland Security (DHS) and the Department of Labor (DOL) are also involved in the process. The regulations require that US employers meet specific labor conditions to ensure that American workers (US citizens and permanent residents of the US) are not adversely affected. The DOL’s Wage and Hour Division has primary responsibility for safeguards on the treatment and compensation of H-1B workers.

As we are all aware, the H-1B cap restriction is the biggest concern both for prospective employers and would-be employees. The H-1B cap for fiscal year 2009 (jobs starting between October 1, 2008 and September 30, 2009) was reached during the initial filing period ending on April 7, 2008. A sufficient volume of petitions were received during the initial filing period that even the 20,000 cap exempt slots individuals with advanced degrees from US institutions were filled during that initial filing period. This last year was no different than any of the past three to four years, the H-1B cap is been reached in no time. Thus any foreign national who seeks an H-1B visa faces significant difficulties due to the current structure and limited numbers of the H-1B visa program.

While the H-1B cap is currently set by statute at 65,000, there are several exemptions that raise the actual number of new H-1Bs each year.

The US Master's degree exemption:
Under the law the first 20,000 H-1B petitions that are filed on behalf of foreign nationals that have earned an advanced degree from a US institution of higher education are exempt from the cap. This essentially creates a separate pool of 20,000 additional H-1B visa numbers each fiscal year that are available only to those foreign nationals who have earned a Master's or higher graduate degree from a US institution of higher education. It does not include foreign graduate degrees, and it does not include professional post-graduate certificate programs. These extra "Master's cap" numbers, like the regular numbers, have been used by the end of April in the last several years, including this year when they were gone, alo