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Last Updated On: September 29, 2023 | Published On: February 21, 2020
Foreign professionals who possess advanced educational degrees have the benefit of being able to file under the advanced degree exemption, otherwise known as the master’s cap” during the H-1B visa season. Due to the highly competitive nature of the H-1B visa process, this exemption is a great advantage that some foreign professionals may not be aware of. In this post, we’ll explore the 2020-2021 H-1B masters quota and how you can improve your chances of selection.
USCIS establishes the quota for the H-1B 2020-2021 season. As it stands, the regular H-1B cap limit is 65,000 registrations while the U.S. master’s quota cap allows an additional 20,000. So the total H-1B master’s quota is 20,000 registrations.
However, this year presents several new changes to the way that the H-1B lottery is conducted.
The first major change is one that is brand new this year. In the past, sponsors would file I-129 petitions in order to enter their beneficiaries into the H-1B lottery. The USCIS would then choose the winners from the petitions and send back the petitions and fees that were not selected to their respective sponsors. This is no longer the process.
Instead, the USCIS has created an online registration system. Sponsors will need to create an account in the system before submitting one registration per beneficiary in order to enter them into the lottery. These registrations will replace petitions for lottery entry (though a petition will still be needed if the registration is selected in the lottery).
The registration window will open on March 1st and continue until March 20th. All registrations submitted outside of this window will not be eligible for selection. After the window closes, the lottery will be conducted and the registrations will be chosen. Those registrations that are selected will allow their sponsors to file I-129 petitions.
Also, last year saw the start of the new ordering for the master’s cap. Rather than the old way, which had the master’s cap conducted first and the regular cap following it, this reordering has the regular cap being conducted first.
This was done to increase the chances that master’s degree holders have of being selected in the lottery. In the old system, with the master’s cap being conducted first, applicants would find themselves in competition with all of the eligible candidates in the master’s cap. Then, all those that were not selected would be entered into the regular cap afterward to compete against hundreds of thousands of applicants.
Now, the regular cap is conducted first, which means that some master’s registrations will be inevitably selected. Then all unselected master’s registrations will be entered into the master’s cap. Because some of the registrations have already been chosen in the regular cap, the master’s pool will be smaller than it would have been had the master’s cap been conducted first.
It’s important to note, however, that as the applicant your advanced degree must be from an eligible and accredited institution.
Click here to read the H-1B Visa 2021 Ultimate Guide.
To be eligible for the master’s degree cap, the United States institution should be public or non-profit in nature. If you received your degree from an unaccredited or for-profit institution, your petition will be denied. Unfortunately, if you did not meet the requirements and you receive a denial as a result, you will also not be counted towards the regular cap.
It’s always advised to consult with an H-1B visa lawyer if you don’t think you’ll meet the eligibility requirements. Again, in order to meet the H-1B master’s requirement, the institution must:
Some examples of accrediting organizations that are formally recognized include the Accrediting Commission of Career Schools and Colleges, Accrediting Council for Continuing Education and Training, Accrediting Council for Independent Colleges and Schools.
An institution’s accreditation status has the potential to change over time. This is why it is always best to be up-to-date on your situation. Some institutions may have been accredited in the past but in time, violations may have caused their accreditation to be revoked.
For instance, Mountain State University used to be an accredited institution. However, due to accrued violations, it was revoked in 2012. Students from this institution will not be able to file under the master’s cap but would still be eligible for the regular quota.
The process for the master’s cap lottery is outlined below:
The process and requirements for the master’s cap lottery are outlined below:
It is important to reiterate the advantage given to registrations for those with master’s degrees. Submitting your registration under the master’s degree exemption gives you the chance to be selected in the first lottery. If your registration is not selected, then your registration will be re-entered into the regular lottery for a second selection.
This means that, as a master’s degree holder, you will essentially have “two bites at the apple” or two separate chances to be chosen in the H-1B lottery. However, if your registration is rejected for reasons such as no accreditation or having a degree from a foreign institution, you will not be able to compete in the regular cap.
Because of this, it is advisable to work alongside your immigration attorney to avoid damaging your chances for selection.
If you don’t qualify based on the master’s quota requirements for 2020-2021, the good news is that you have other exemption options available:
If your registration is selected, then the next step will be to file an I-129 petition with the USCIS along with any and all supporting documents and H-1B fees. Remember that a petition is only filed if a valid registration has been selected. If your registration still has a status of “submitted”, any petition filed for this case will be rejected.
Once you have filed the petition, the next step is to wait for the USCIS to process it and render a verdict. This can take as little as a few weeks or as long as six months depending on the caseload of the service center that is processing your petition. Premium processing can help here, but even if your petition is approved in 15 calendar days, the earliest that the beneficiary can start working is October 1st. Speak with your immigration attorney to see if premium processing would be beneficial for your situation.
If the petition is approved, then the beneficiary will be able to start working at the beginning of the next fiscal year, which is October 1st. No other action will be needed. However, if the USCIS sends a Request for Evidence (RFE), then the sponsor will need to respond correctly and in a timely fashion.
If there are 85,000 slots available in the lottery and that many are chosen, some will inevitably be denied or withdrawn. When that happens, the USCIS has developed a way to fill those now-vacant spots.
There are four possible statuses that your registration can have in the USCIS online portal. They are as follows:
The USCIS understands that there will be some sponsors whose registrations are chosen, but whose petitions are rejected or denied. When that happens, it will choose a registration to replace it. If your registration says “Submitted” after the window is closed, that replacement registration could be yours.
The USCIS has disclosed the rough formula that they use to determine the cap amounts:
2021 Cap = 2021 regular cap (65,000) – 2021 H-1B1 Singapore-Chile exemption cap (6,800) + extra registrations from the 2019 H-1B1 cap + extra 2021 registrations in case some are denied or withdrawn
The basic filing fee for the I-129 petition is $460 and the Public Law 114-113 fee remains at $4,000 for employers that have more than 50 employees with over half under H-1B or L-1 status.
These fees need to be considered alongside the ACWIA Education and Training fee as well as the Anti-Fraud fee of $500. To gain a better understanding of what the fees will look like in the 2021 H-1B master’s quota, check with your immigration attorney.
Below are some common H-1B masters quota 2021 questions:
The lottery exists to limit the number of jobs in the U.S. that are outsourced to foreign nationals. Because the demand for this visa class is so high, the USCIS only allows a certain number of individuals to receive H-1B visas each year.
Cap-exempt petitions can be filed to adjust the terms of employment for a current H-1B worker, to extend the amount of time as an H-1B worker, allow the H-1B worker to change employers, etc. These petitions can also be for cap-exempt employers. A cap-exempt employer is either an institute of higher education, a nonprofit organization associated with an institute of higher education, or a governmental research facility.
Keep in mind that even though this is often called the “master’s degree exemption”, it is not a cap-exempt petition. This excuses you from the regular cap and enters you into the master’s cap (with the opportunity to enter the regular cap if you are not selected in the master’s cap). However, you are still subject to the H-1B cap and must have a registration entered into the lottery that is selected. You will also not be able to work until October 1st of that same year if your petition is selected and approved.
If there is a mistake in your H-1B cap application, you most likely will not get a second chance to apply. For that reason, it is incredibly important to have a qualified immigration lawyer thoroughly review your petition.
Unfortunately, it is impossible to self-petition for an H-1B in 2021. This is because you must have an employee-employer relationship between you and your sponsor. If you are the sole proprietor of your business, you will be fulfilling both roles and will be unable to petition for an H-1B. To start a business on an H-1B, you will need to set up a third party that can act as your employer.
To prove that you and your sponsor maintain an “employee-employer” relationship, you need to show that your sponsor has complete control over your wages, job duties, and employment status. Proving this is essential to being able to start a business under H-1B status.
Getting a Request for Evidence (RFE) is like getting a second chance. Rather than deny or reject your petition outright based on lack of evidence, the USCIS is giving you the opportunity to provide documents to support your case. Basically, there are three types of responses to an RFE:
Submitting some evidence (like educational documents, bank statements, or copies of certificates) is usually preferable to submitting nothing. If the USCIS does not receive a response within the allotted window, it will likely be denied.
Yes, the H-1B is evaluated in a two-pronged system in 2021. The first prong is when the evaluating officer assesses whether the information on your petition is accurate, complete, consistent, and supported with enough evidence (e.g. copy of master’s degree, work experience, etc.). He or she will also check to see if the correct fees have been paid. If your petition fails this stage, then it will likely be rejected. The best thing to do in this situation may be simply to correct the mistake and refile next season. If you are filing for an H-1B extension or transfer, you can file whenever you would like.
However, if your petition makes it past the first prong and onto the second, it will be evaluated on its merit. This means that the evaluating officer will determine if, based on the evidence and information on your petition, you and your employer are qualified for the H-1B visa. If your petition fails this stage, it will probably be denied.
If your H-1B visa is denied, you will likely not have the option to appeal the decision, as denoted by your denial letter. You may, however, be able to file one of two motions:
Motion to Reopen: This is used when you have obtained new evidence that would drastically change the decision made for your H-1B petition if the case were to be reopened.
Motion to Reconsider: This is used if you and your attorney believe that the evaluating officer was wrong in his or her decision to deny your petition. You will likely need to present an argument that shows how you are eligible for the H-1B according to immigration law.
In either case, a legal motion should not be pursued without the help of an immigration attorney who is experienced with motions and appeals.
Yes. It is possible to use premium processing to expedite your H-1B petition’s processing time to 15 calendar days by filing an I-907 form. However, there are a few things to note about this service:
Because the H-1B is limited to the dates given (April 1st and October 1st), premium processing may not be the best option for your case. Even if your petition is approved in 15 calendar days, you will still need to wait six months to start working on October 1st. That being said, premium processing can sometimes be helpful if you have received an RFE and have a narrow window to respond.
Additionally, last season, the USCIS chose to suspend premium processing so that those petitions without that service would be processed. There is no indication of whether this will happen again for the 2020-2021 H-1B season.
As a side note, if the USCIS does not process your petition in 15 days after you have filed the I-907 and paid the fee, that fee will be refunded to you and your petition will be processed normally.
While having a master’s degree does not directly give you an advantage when filing for a green card, it may set you up to be qualified for one of the better green cards. The EB-2 visa usually has short priority date waiting times, so it’s highly sought-after. Fortunately for you, one way to get an EB-2 is to have an advanced degree. However, this is not enough. You must also have a job that requires your degree. Your immigration attorney can better assess your eligibility for this green card based on your master’s degree.
Additionally, President Trump has recently mentioned the following:
“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”
While this seems to counteract the administration’s recent actions, it does fall in line with the overall sentiment to make the H-1B more geared toward highly-skilled (i.e. high earning) aliens. An executive order could cause this “citizenship path” to become true. However, as it stands, there is no direct route to citizenship from H-1B status. You must first get a green card and hold it for at least five years.
There is no direct immigration benefit for any H-4 spouses due to an H-1B beneficiary going through the master’s cap outside of giving the principle H-1B applicant two bites at the apple. Additionally, the current administration is working to implement rules to make it impossible for H-4 visa holders to apply for employment authorization. Speak with your immigration attorney to see if the H-4 will be the best route for you.
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From filing your petition to determining if your institution is accredited, there are dozens of mistakes that are very easy to make for the inexperienced. VisaNation Law Group can ensure that you get it right the first time and that all obstacles are handled by a professional, saving both you and your employer time and money.
Tags: H-1B cap, H-1B Lottery, Premium Processing
