The H-1B Cap
Who is actually subject to the cap?
Not every H-1B applicant is subject to the general cap. Visas will still be available for applicants filing for amendments, extensions, and transfers unless they are transferring from an exempt employer or exempt position and were not counted towards the cap previously.
The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organizations, and government research organizations. Note that the statute states that applicants who work AT such institutions are covered so individuals employed by entities other than these institutions but who provide services at the qualifying institution should be cap exempt. An example would be a physician employed by a medical group who serves patients at an exempt university hospital.
Physicians receiving waivers of J-1 home residency requirements as a result of agreeing to serve in underserved communities are exempt. Also, graduates of US masters and doctoral degree programs draw numbers from a “bonus” allotment of 20,000 visas (which will probably also run out in the next few months). As noted above, nationals of
When was the last time the H-1B cap was hit?
The H-1B cap was last hit on
What will happen to petitions that were not filed in time?
All applications received on
Aside from the randomly selected cases received on May 26th, all cases filed on that date or later that are subject to the H-1B cap will be returned. Returned petitions will be accompanied by the filing fee.
Can an applicant re-submit an H-1B application?
Petitioners may re-submit their petitions when H-1B visas become available for FY 2007. The earliest date a petitioner may file a petition requesting FY 2007 H-1B employment with an employment start date of
What will happen to the petitions that do not count against the cap?
Petitions for current H-1B workers normally do not count towards the congressionally mandated H-1B cap. USCIS will continue to process petitions filed to:
Extend the amount of time a current H-1B worker may remain in the
Change the terms of employment for current H-1B workers
Allow current H-1B workers to change employers (unless the beneficiary is transferring from a cap exempt employer to a cap subject employer and was never counted towards the cap- in that case the beneficiary will be subject to the cap)
Allow current H-1B workers to work concurrently in a second H-1B position
USCIS will also continue to process petitions for new H-1B employment filed by applicants who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from
What will happen to F and J visa holders who are beneficiaries of an H-1B petition?
In the past,
When will the numbers in the new 20,000 “bonus” cap be filled?
According to USCIS, for fiscal years 2007, USCIS has received approximately 6,600 advanced degree worker H-1B petitions. Given the pace of usage, these visas should remain available for several more months. To qualify in this bonus cap, applicants must have earned a
What will happen if I am not exempt from the cap and my current status expires after the numbers run out?
In order to deal with the lack of H-1B visas, a number of alternate categories may be available including O-1 visas, TN visas for Canadians and Mexicans, E-1 and E-2 visas, L-1s and J-1 training programs. Many will look at pursuing graduate education in the US and then will be eligible for the bonus H-1B quota.
An option available to many this year will be filing for permanent residency. There are many work-related green card applications that can be filed without a labor certification. And the new PERM labor certification program means that employment authorization can be obtained much earlier. Now that concurrent filing of I-140 and adjustment of status applications area available, it may be possible to secure an employment authorization document in a matter of a couple of months after the green card process is started.
We advise people subject to the cap looking for alternative strategies to consult early with their immigration lawyers.
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.