H-1B Cap Exemption Issues

[saikab]

Dear Attorney,

1. I had my H1petition from Sep2008-2011. Visa stamped in 2010 and valid tillSep2011. Never travelled to US.
2. Now I understand this would be cap-exempt.

Q1. Can you please let me know till when this petition is cap-exempt i.e. month/year?
Q2. If I apply now from a different employer, is this considered a transfer of petition or is this going to be a new petition? In either case, what would be the possible validity of the new petition (3 or 6 years)?
Q3. If more than one employer applies for the petition(based on cap-exempt of previous petition), are these multiple petitions considered as separate (or) each of them would be over-riding the other based on date of petition?

Thanks in advance for the response.

[Attorney_25]

....

1) 1st Not for Profit H1B from September 2008 to August 2011.

2) Changed employer to 2nd Not for Profit H1B from April 2011 to March 2014.

3) Got I-140 approved in 2012 from 2nd Not for Profit employer and also received H1B extension from March 2014 to April 2017 recently with same not for profit employer.

 

Now, I have an offer from a for profit employer what should I do? All my H1B's are from Not for Profit employers. Will I be able to switch over my Not for Profit H1B to a for Profit H1B? Or I will have to apply in April 2014 and wait until October 2014 to start with my for Profit employer?

...

 

From your facts, it sounds like your employers used cap exemptions for -

• employment at a public or non-profit institution of higher education or a related or affiliated nonprofit entity;   
• employment at a nonprofit research organization or a governmental research organization.

Therefore, to move to an employer who doesn't fit under one of those cap exemptions, the petition either 1) Must be filed April 1-7 for an October 1 start date; or 2) May under certain circumstances be able to be filed as concurrent employment where you work at both the cap-exempt and the for-profit employers at the same time (maybe FT 40 hours at one and PT 20 hours at the other, for example). (But the second example wouldn't count you against the cap and if you leave the exempt employer the next petition filed for you will be cap-subject.)

 

You still should be able to use the I-140 approval to obtain extension beyond six years of H-1B with the new employer.

[Attorney_25]

1. Can two H1B petitions be filed simultaneously? Can a cap-subject petition be filed for the same person while a cap-exempt petition processing is in progress? 

2. What would happen then if one of them is approved and the other is rejected? Can this person work on H1B if one of the petitions is approved?

Two petitions can be filed at the same time by different employers.

 

Two cap-subject petitions cannot be filed by the same employer for the same person/position.

 

The same employer may file both a cap-subject and cap-exempt petition for the same person, but I would suggest that they not be filed at the same time, to avoid possible confusion.

 

If one petition is approved and the other is denied, a person may use the one that is approved to work.

[Attorney_25]

I got my H1B petition approved in 2007 and got my visa stamped in 2008 through my (current) employer. But I couldn't travel to the US.

In 2010, my H1B got expired. Now my queries are,

    1) if I want to travel to US, through some other employer (from US) wishes to sponsor I mean if they are fine to do an LCA, can I do that?

    2) Would I be in the cap exemption or do I need to start the H1B process from scratch?

    3) Do I need to get any approval from my current employer?

    4) If I fall under the H1B cap exemption category, is it fine that I just need to stamp my visa with employer(new).

 

 To clarify a possible misunderstanding here, each time you move to a new employer a separate H-1B petition must be filed with USCIS. (The same is true for extending or amending status with the same employer.) So no matter whether or not you are cap-exempt, you must go through the entire H-1B process with the new employer.

 

As to whether you are cap-exempt, you do not fit within the technical wording of the law to be cap exempt. Therefore, while USCIS may accept your petition as reclaiming the remainder of your previous six years in H-1B status, you cannot be assured of that. There is a clear risk that USCIS will say that you are not cap-exempt. It's up to your employer to decide if they want to take that risk and possibly lose the money they have invested in filing the petition.

 

I have certainly seen petitions approved where the person was counted 7 or 8 years previous and then had been outside the US for more than one year, but your chances are less when you never entered the US on the H-1B. (See answer to next question for more info.)

[Attorney_25]

Dear Attorney,

1. I had my H1petition from Sep2008-2011. Visa stamped in 2010 and valid tillSep2011. Never travelled to US.

2. Now I understand this would be cap-exempt.

Q1. Can you please let me know till when this petition is cap-exempt i.e. month/year?

Q2. If I apply now from a different employer, is this considered a transfer of petition or is this going to be a new petition? In either case, what would be the possible validity of the new petition (3 or 6 years)?

Q3. If more than one employer applies for the petition(based on cap-exempt of previous petition), are these multiple petitions considered as separate (or) each of them would be over-riding the other based on date of petition?

Thanks in advance for the response.

To again clarify a possible misunderstanding, there is no difference between a "transfer of petition" and a "new petition." Each petition filed for you is a separate petition. A prior petition is not transferred to a new employer.

 

USCIS may accept this petition as cap-exempt because you were counted within the previous 6 years. You are counted on the date the petition was approved. But because you are eligible for 6 years of H-1B status whether asking for a new 6 years or relying on an exmption in the previous 6 years, the cap-exemption language in the law does not apply to you. If they were to get technical based on the law, USCIS could reject or deny a petition for you as not cap-exempt. However, cases are sometimes accepted in this situation, probably because the adjudicator handlign the case does not know how to apply the law and because USCIS leadership has not issued specific written instructions on the issue.

 

Valid H-1B petitions by multiple employers can exist at the same time. They do not override each other. (This is different from the issue of one I-94 overriding another.)

 

A single petition can never be approved for more than three years.

[Attorney_25]

In closing, if you are not sure whether or not you are cap-exempt, it is advisable to talk with an attorney as soon as possible. If you are not clearly cap-exempt, a good strategy is to have a cap petition filed for you in the first 5 business days of April (preferably April 1), for an October 1 start date. This time is fast approaching, and if your petition is not filed in that timeframe, you most likely will lose the chance to have a cap petition filed for you until next year. 

 

To be sure your petition is filed on April 1, it's best if you start the case with an attorney no later than March 10, as there could be last-minute delays in obtaining an LCA, which must be done before the petition is filed.

 

Some people are cap-exempt even though they've been outside the US for more than a year or have been in another status. If you are cap-exempt, an H-1B petition can be filed for you at any time during the year.

 

There are also cap-exempt positions, for example at •employment at a public or non-profit institution of higher education or a related or affiliated nonprofit entity;   •employment at a nonprofit research organization or a governmental research organization.. Petitions for such positions also can be filed at any time during the year.

 

Please speak with a qualified immigration attorney to strategize your personal situation. For more information about speaking with a Murthy Law Firm attorney, please see http://www.murthy.com/client-services/hire-us/.

[L2EADGC]

In a situation where a person has completed a full 6 years in H-1B + L1B time, there is no remainder to use in a cap-exempt petition. Such a person who has then spent one year outside the US and then returned on a "fresh" L-1B has chosen to restart the clock on H-1B and L-1 time, and is subject to the H-1B cap, not exempt.

 

Hi Attorney,  I fall under this above category that you mentioned. I have completed 7 Years on my L1A by May 2012 and went back to my home country in May 2012 and returned as a dependent to my spouse on H4 in August 2013. I got my old H1B petition approved from 2006 , recently I got a job and my employer/attorney filed my H1B as Cap Exempt using my old H1B and it was approved . Do you think I will have any issues in the future ? or will it be revoked at a later time ? What are the consequences that I may have ? Please suggest ?

[jackdorsan]

From your facts, it sounds like your employers used cap exemptions for -

• employment at a public or non-profit institution of higher education or a related or affiliated nonprofit entity;   
• employment at a nonprofit research organization or a governmental research organization.

Therefore, to move to an employer who doesn't fit under one of those cap exemptions, the petition either 1) Must be filed April 1-7 for an October 1 start date; or 2) May under certain circumstances be able to be filed as concurrent employment where you work at both the cap-exempt and the for-profit employers at the same time (maybe FT 40 hours at one and PT 20 hours at the other, for example). (But the second example wouldn't count you against the cap and if you leave the exempt employer the next petition filed for you will be cap-subject.)

 

You still should be able to use the I-140 approval to obtain extension beyond six years of H-1B with the new employer.

 

Hello Attorney,

 

Thanks for your reply.

 

1) So you mean to say that even if I filled for concurrent H-1B for for-profit employer this April. it will not make any difference for me because i cannot switch it over to for-profit completely on the basis of concurrent H-1B. I have to have a full time for profit H1B Visa's only. did I got that right?

 

2) In the given scenario where my I-140 is filled by a not-for-profit employer, will I be able to use it towards extension for for-profit employer and switch it over to for-profit employer completely?

 

3) Passing thought, If I can find a for-profit employer who is ready to file full time H-1B this April, 2014 and coming Oct 2014 instead of working full time with the for-profit company, can I activate my for-profit H-1B by working for him for some hrs/wk (20hrs/wk or little more whatever required as per you) and continuing full time with my not-for-profit employer, can this be counted towards my for-profit H1B visa afterwards it would be easy to simply switch it over to for profit employer completely?

 

Thanking you,

 

Jack Dorsan.

[Attorney_25]

Hi Attorney,  I fall under this above category that you mentioned. I have completed 7 Years on my L1A by May 2012 and went back to my home country in May 2012 and returned as a dependent to my spouse on H4 in August 2013. I got my old H1B petition approved from 2006 , recently I got a job and my employer/attorney filed my H1B as Cap Exempt using my old H1B and it was approved . Do you think I will have any issues in the future ? or will it be revoked at a later time ? What are the consequences that I may have ? Please suggest ?

Most likely there will be no problem. It is very unlikely that USCIS will try to revoke it. It's a little more likely that when you have an extension filed that USCIS will notice the issue at that point and refuse to extend your status. If you have an I-140 approved by then, then that reduces your chances of problems because USCIS is less likely to be counting your previous days in H-1B and L-1A status.

 

Fortunately, since your spouse is H-1B status, you always have the backup of going back to H-4 status.

[Attorney_25]

Hello Attorney,

 

Thanks for your reply.

 

1) So you mean to say that even if I filled for concurrent H-1B for for-profit employer this April. it will not make any difference for me because i cannot switch it over to for-profit completely on the basis of concurrent H-1B. I have to have a full time for profit H1B Visa's only. did I got that right?

 

2) In the given scenario where my I-140 is filled by a not-for-profit employer, will I be able to use it towards extension for for-profit employer and switch it over to for-profit employer completely?

 

3) Passing thought, If I can find a for-profit employer who is ready to file full time H-1B this April, 2014 and coming Oct 2014 instead of working full time with the for-profit company, can I activate my for-profit H-1B by working for him for some hrs/wk (20hrs/wk or little more whatever required as per you) and continuing full time with my not-for-profit employer, can this be counted towards my for-profit H1B visa afterwards it would be easy to simply switch it over to for profit employer completely?

 

Thanking you,

 

Jack Dorsan.

1. If the petition is filed against the cap, April 1 - 7, then it does not have to be concurrent. If it is not, and is filed as concurrent, then you need to start out working concurrently. If you then leave the nonprofit employer, you can continue working on your concurrent petition but it cannot be amended or extended. SO the next year you would want to have a cap petition filed.

2. You can use an I-140 approval with one employer for an extension with another.

3. You can have a cap H-1B filed for part-time work. It can also be concurrent with the nonprofit's exempt petition. If you change from part-time to full-time, or full-time to part-time, generally an amended petition is required to be filed.

[rj325]

Dear Attorney,

 

My F1 opt extension is expiring in June of 2016. I will be applying for a H1b visa through the lottery system, but to be on the safer side I want to know if my employer can also do a cap exempt H1B visa. I have few questions regarding my situation:

My employer is a start up LLC  and is using a lab space provided by a university. We have a collaboration with the university and use their lab equipment and facilities for doing our research work. Am I eligible for a H1B cap exempt visa application? 

 

Thank you,

Raj

[knkr]

Dear Attorney,

 

I dont know if mine is a peculiar scenario but can you please help me in figuring our if my H1B is eligible for transfer (or rather if I can change employer with my current H1B petition).

 

Here is the detailed explaination of my visa situation

 

1. I first got selected for lottery in 2008

2. First entered US in Nov,2009 - got couple of extensions - went back to India in Sep,2012

3. My visa expired in May 2013

4. Since, I had used less than 3 yrs of my visa, my employer filed H1B out-of-the-cap in June, 2014 to recapture the left over period from my previous petition

5. I got visa for nearly 3 yrs this time (It is currently valid till mid of 2017)

6. Today I have an offer from a different employer and their immigration team mentioned I have maxed out on my H1B time and that they would need an approved I140 to go ahead with the transfer. Since, my employer never filed for my GC, I do not have I140.

 

Why is my H1B not eligible for transfer like anyone else when I still have more than 2 yrs 8mths to be used? Is it because I have got through lottery more than 6 yrs ago? Can someone please confirm if the other employer is right or have they misunderstood the case.

 

I can provide any other information you may need in answering my questions. Thanks for your help in advance.

[Rich]

Hello,

I am a dentist from India, I am on F2 status in US.

As legally I am not allowed to continue my dentistry without any further studies, The best I can do is to join some non-profit organizations to help others and make best use of my knowledge.

Can the NPOs sponsor me H1B later? (All of them or only specific NPOs)

I have some really great ideas for the service betterment of community. Can I start any Non-profit on my own?

[jairichi]

Dear Attorney,

 

I dont know if mine is a peculiar scenario but can you please help me in figuring our if my H1B is eligible for transfer (or rather if I can change employer with my current H1B petition).

 

Here is the detailed explaination of my visa situation

 

1. I first got selected for lottery in 2008

2. First entered US in Nov,2009 - got couple of extensions - went back to India in Sep,2012

3. My visa expired in May 2013

4. Since, I had used less than 3 yrs of my visa, my employer filed H1B out-of-the-cap in June, 2014 to recapture the left over period from my previous petition

5. I got visa for nearly 3 yrs this time (It is currently valid till mid of 2017)

6. Today I have an offer from a different employer and their immigration team mentioned I have maxed out on my H1B time and that they would need an approved I140 to go ahead with the transfer. Since, my employer never filed for my GC, I do not have I140.

 

Why is my H1B not eligible for transfer like anyone else when I still have more than 2 yrs 8mths to be used? Is it because I have got through lottery more than 6 yrs ago? Can someone please confirm if the other employer is right or have they misunderstood the case.

 

I can provide any other information you may need in answering my questions. Thanks for your help in advance.

You are cap exempt till you reach the max allowed of 6 years on H1B.

[jairichi]

Hello,

I am a dentist from India, I am on F2 status in US.

As legally I am not allowed to continue my dentistry without any further studies, The best I can do is to join some non-profit organizations to help others and make best use of my knowledge.

Can the NPOs sponsor me H1B later? (All of them or only specific NPOs)

I have some really great ideas for the service betterment of community. Can I start any Non-profit on my own?

You cannot volunteer on F2 unless there are other people volunteering in the same position and not replacing a job.

I do not think your degree is accepted in US to work and in that case a H1B petition cannot be filed.

[ubayogi]

Posting here as it seems the most relevant thread.

• 2004: Masters degree from a US university
• Feb 2004 - Jan 2005: OPT period
• Counted against 2005 H-1B cap limit
• Jan 2005 - Jan 2008: First H-1B approval
• Jan 2008 - Jan 2011: H-1B renewal
• April 2008: returned to India due to disability. Was away from work under company disability insurance but not under social security disability.
• Dec 2008: Laid off by US employer.

Now in 2015, after a long gap, I've the opportunity to work in the US. Do I need to go through the H-1B cap system again? Does any of the following count in my favor?

• 25 months of H-1B was unused since the Dec 2008 layoff
• Spent several months in short-term and long-term disability while on active H-1B

I'm not averse to seeking legal assistance from Murthy Law Firm if there is a specific way to address my issue favorably.

[jairichi]

Posting here as it seems the most relevant thread.

• 2004: Masters degree from a US university
• Feb 2004 - Jan 2005: OPT period
• Counted against 2005 H-1B cap limit
• Jan 2005 - Jan 2008: First H-1B approval
• Jan 2008 - Jan 2011: H-1B renewal
• April 2008: returned to India due to disability. Was away from work under company disability insurance but not under social security disability.
• Dec 2008: Laid off by US employer.

Now in 2015, after a long gap, I've the opportunity to work in the US. Do I need to go through the H-1B cap system again? Does any of the following count in my favor?

• 25 months of H-1B was unused since the Dec 2008 layoff
• Spent several months in short-term and long-term disability while on active H-1B

I'm not averse to seeking legal assistance from Murthy Law Firm if there is a specific way to address my issue favorably.

You are eligible to get 6 years - time spent in US on H1B status based on cap exempt H1B petition.

[ubayogi]

You are eligible to get 6 years - time spent in US on H1B status based on cap exempt H1B petition.

Dear jairichi, thanks for your response. I do not fully understand the second part of your statement. Do you mean to say I'll be able to file a cap exempt petition this year (2015). If so, what'd be the basis to do that?

[jairichi]

Dear jairichi, thanks for your response. I do not fully understand the second part of your statement. Do you mean to say I'll be able to file a cap exempt petition this year (2015). If so, what'd be the basis to do that?

Yes, employer can file a cap exempt H1B petition if you have not stayed the max allowed stay of 6 years on H1B.

[ubayogi]

Yes, employer can file a cap exempt H1B petition if you have not stayed the max allowed stay of 6 years on H1B.

Thanks. Can I also assume the following, please correct me if I'm wrong.

• It doesn't have to be the same employer who laid me off in Dec 2008. A different employer can also apply for the cap exempt petition this year, 2015.
• The length of elapsed time doesn't matter. After the layoff in Dec 2008, the previous H-1 status must have automatically terminated. Now it's been almost 7 years.
• As you said in the beginning, I'd be eligible for fresh set of 3+3 years.

[jairichi]

 

Thanks. Can I also assume the following, please correct me if I'm wrong.

• It doesn't have to be the same employer who laid me off in Dec 2008. A different employer can also apply for the cap exempt petition this year, 2015.
• The length of elapsed time doesn't matter. After the layoff in Dec 2008, the previous H-1 status must have automatically terminated. Now it's been almost 7 years.
• As you said in the beginning, I'd be eligible for fresh set of 3+3 years.

 

Points 1 and 2 are correct. You will not get 6 years when a cap exempt H1B petition is filed. As you have already spent some years in US on H1B you are eligible for remainder years.

[ubayogi]

You are eligible to get 6 years - time spent in US on H1B status based on cap exempt H1B petition.

Points 1 and 2 are correct. You will not get 6 years when a cap exempt H1B petition is filed. As you have already spent some years in US on H1B you are eligible for remainder years.

 

Thanks again. It's only now that I fully understood your first statement (that the dash meant 'minus'). When calculating remainder time, we get to include all periods of stay spent outside the US (within the 6-yrs period of the old H-1B, Jan 2005 - Jan 2011), correct?

[jairichi]

Thanks again. It's only now that I fully understood your first statement (that the dash meant 'minus'). When calculating remainder time, we get to include all periods of stay spent outside the US (within the 6-yrs period of the old H-1B, Jan 2005 - Jan 2011), correct?

Sorry if it was not clear the first time. Calculate the number of days, months and years you spent in US on H1B status. Subtract 6 years from that. Any period you spent outside US like vacation can be recaptured.

[ubayogi]

Sorry if it was not clear the first time. Calculate the number of days, months and years you spent in US on H1B status. Subtract 6 years from that. Any period you spent outside US like vacation can be recaptured.

 

No worries. The error was on me, that I did not interpret it the right way earlier. Now it's quite clear.

 

Does this approach have any upper bound in terms of time limit before which a cap exempt application can be made? Reason I ask -- in case the opportunities that I currently pursue finalize only by Dec 2015 or after (early 2016), can I still make use of the cap exempt petition?

[jairichi]

No worries. The error was on me, that I did not interpret it the right way earlier. Now it's quite clear.

 

Does this approach have any upper bound in terms of time limit before which a cap exempt application can be made? Reason I ask -- in case the opportunities that I currently pursue finalize only by Dec 2015 or after (early 2016), can I still make use of the cap exempt petition?

You are cap exempt till you reach the 6 years stay on H1B status. No time limit.