H1B Advanced Degree Cap FAQs
Posted May 12, 2006
 ©MurthyDotCom
We at the Murthy Law Firm frequently receive questions on a variety of topics and compile these, with responses, for readers of MurthyDotCom and the MurthyBulletin. Some of the questions we have received lately concern the 20,000 advanced degree cap exemptions for persons with U.S. masters' degrees or higher levels of education. These are set out below, with answers that we hope will prove helpful to our readers. As of this writing, advanced degree numbers remain available. We are tracking the usage of these H1B numbers, as well as the regular cap numbers, and have provided our readers with the latest information in this week’s MurthyBulletin (See article #1 above, USCIS Provides Usage Update on FY2007 H1B Numbers.).
 ©MurthyDotCom
Question 1. Are advanced degree cases possible each year?
 ©MurthyDotCom
Yes. This was not a one-year or temporary measure. Unless there is a change in the law, these 20,000 cap exemptions are available each year.
 ©MurthyDotCom
---
 ©MurthyDotCom
Question 2. When can the filings start for the advanced degree cases?
 ©MurthyDotCom
These cases track to the same government fiscal year as the regular H1B cases. The filings for Fiscal Year (FY) 2007 started April 1, 2006, six months in advance of the start of the fiscal year. The cases can request start dates that are on or after October 1, 2006. (H1B cases can be filed six months in advance of the requested start date.)
 ©MurthyDotCom
---
 ©MurthyDotCom
Question 3. Are you sure that they can only have an October 1, 2006 start date? I know someone who was able to request an immediate start date in an advanced degree case previously.
 ©MurthyDotCom
Yes, we are sure about the October 1 start date for nonexempt employers. The numbers are available at the beginning of each fiscal year. The confusion surrounding this matter arises from the initial creation of the 20,000 advanced degree exemptions. These numbers were first authorized for FY2005, but the law took effect in the middle of FY2005, rather than when FY2005 started, on October 1, 2004. The law creating the advanced degree exemptions was signed in December 2004 and was supposed to become effective on March 8, 2005. There was a delay in the implementation of the law, and the filings actually started on May 12, 2005.
 ©MurthyDotCom
Since the exemptions came into effect in the middle of the fiscal year, the case filings could start right away and could request an immediate start date for FY2005. There were enough numbers to meet the needs of employers through the end of FY2005 and into FY2006 (which started October 1, 2005). Thus, it was possible to file the advanced degree cases and request immediate start dates until the point were the FY2006 numbers were all depleted on January 17, 2006.
 ©MurthyDotCom
The depletion of the FY2006 numbers meant that it became necessary to wait until FY2007, which starts October 1, 2006, for new advanced degree numbers. Thus, these filings started April 1, 2006 and must have a start date on or after October 1, 2006.
 ©MurthyDotCom
---
 ©MurthyDotCom
Question 4. Does the age of my degree matter? Do I have to be a student to get one of the 20,000 exemptions?
 ©MurthyDotCom
No and no. All that is needed is a U.S. master's or higher level degree. It does not have to be recent and one does not have to currently be a student.
 ©MurthyDotCom
---
 ©MurthyDotCom
Question 5. Are these exemptions only for jobs requiring master's degrees or above?
 ©MurthyDotCom
No. They are based upon the educational credentials of the foreign national, not the job requirements.
 ©MurthyDotCom
---
 ©MurthyDotCom
Question 6. Is there any way that a person with only foreign degrees can get one of the advanced degree (or Master's Cap) exemptions? What if his or her degree is equivalent to a U.S. degree?
 ©MurthyDotCom
No. Without exception, only those with U.S. degrees are eligible for this exemption.