H-1B Cap Issues


Attorney_25

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For the next one week we will discuss issues surrounding the annual "H1B Cap." It is suggested that you first read related Murthy.com articles such as H1B Lottery: Understanding Case SelectionShedding Light on Misunderstandings About H1B Cap, Transition Concerns from F-1 to H1B, Requirements for U.S. Masters’ Graduates to Enjoy Benefit of H1B “Master’s Cap”H1B “Master’s Cap” Pitfalls: Cautionary Reminder, FY14 H1B Cap Season: Get an Early Start (last fiscal year) and generally H1B Visa & Status.  You may be able to find other articles specific to your concerns by using the Murthy.com Search box.

 

The basic limitation on new H1B visa numbers for persons who have not held H1B status before is 65,000. However, this is reduced by the number of H1B1 (Singapore/Chile) visa numbers issued, up to 6,800, and increased, for persons with qualifying US advanced degrees, only, by 20,000. USCIS will estimate the number of denials and withdrawals expected, and will add that number to the petitions they accept,to make sure that they do approve the allotted quantity of visa numbers.

 

USCIS will begin accepting petitions on April 1, 2014, for an employment start date of October 1, 2014, the beginning of the 2015 fiscal year. They must continue to accept petitions for at least the first five business days of the filing season, so through April 7th this year. If the maximum number of petitions is received by then, there will be a lottery including all petitions accepted those first 5 days, except for the petitions accepted under the "Master's Cap," or 20,000 exemption for persons with qualifying US advanced degrees. If more than 20,000 "Master's Cap" petitions are received in those first 5 days, there will be a separate lottery for them, conducted first, and those not accepted in that lottery will be put into the general lottery.

 

Please keep in mind that for H1B classification, the position must be one that requires a Bachelors degree or the equivalent, and the beneficiary must qualify under those requirements. If qualifying based on a degree itself, all requirements for the degree must be met by the filing date. In addition, there are wage and labor compliance requirements regarding this nonimmigrant classification.

 

Some "new petitions" may be exempt from the H1B cap. We will discuss this and alternatives to the H1B classification in other threads.

 

Please post your relevant questions here.

 

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Hello,

 

I previously had a H1B visa stamped while I was working in India for a MNC. 

- The visa stamp in passport has the P# mentioned.

- The Visa was issued in Jan-2010.

- The petition and visa both expired in Mar-2012.

- I worked for the sponsoring MNC until April 2012 in India

- however, I never traveled to USA on this H1B visa

 

So, to summarize, the H1B petition/visa was approved, but never used and has expired.

 

I am currently in US on H4 visa. At present, if same or a different Employer is willing to sponsor H1B for me, can they file a non-cap H1B petition for me, as I have been counted under cap in 2010. If yes, can this be filed under premium processing, without waiting for April-14 timeline of new filing.

 

Thanks,

S.

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A foreign national who has been issued an H1B visa from a U.S. consulate abroad is typically considered to have been counted against the H1B cap. In that situation, an employer in the United States can typically file a cap-exempt H1B petition on that individual's behalf. There would be no need to wait until April to file such a petition.

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Hello,

 

 My H1B has been approved as CAP Exempt .

 

1) Came to USA on L1A in July 2004.

2) Went back to India in May 2006.

3) Got H1B petition approved through a different employer in Septermber 2006, but this H1 was never used and I was never on H1B status.

4) Came back to US on L1 in November 2006 and stayed on L1B and L1A visa till May 2012.

5) Exhausted 7 years period on L1 status.

6) Stayed in India from May 2012 to August 2013 for more than 365 days.

7) Returned back to USA in August 2013 on H4 visa as a dependent to my spouse.

8) Filed for a cap-exempt H1B in January 2014 using my old H1B that was approved in 2006.

9) Got an RFE on Employee-Employer relationship , Dependent Status and Recapture dates.

10) For recapture dates they asked me to send my passport all pages and last years tax return documents.

11) RFE was responded on 31st Jan 2014, documents reached USCIS on 3rd Feb 2014.

12) H1B has been approved on 5th Feb 2014.

 

Thanks everyone on this forum for sharing useful information.

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Hi,

I have the following queries which needs to be addressed on urgent basis .

I am currently on L1B visa . I have been interviewed in a hospital (non profit) for systems analyst position through consultancy and are impressed and would like to hire me however i have the following queries which helps to get me a clear pictureo f how to handle the visa situation  My queries are as follows

1. Does all non profit organizations are cap exempted ?
2. The company wants that my visa to be processed by the consultant( profit organization) and after 3 months they will transfer me into their full time payroll and are ready to provide required documentation if i am eligible . In this case am i eligible to apply for Visa on cap exempt basis ?

Thanks
KSNR

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Hi,

1. Is it possible to apply for two H1B petitions for same employee, but different employers?

2. If so, what are the consequences/procedures that USCIS takes in to consideration for that specific employee?

3. Would there be any chance of rejection solely based on the two applications for the same employee, but differetn employers

4. If lucky enough to get lottery selected of both applications, then it is reducing the chance of another person's H1 Petition in the lottery;

    How fair is this approch and USCIS treats this scenario?

 

Thanks,

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Hi

Wanted to check ,if there us any rule around filing H1b's .

I am on L1b ,present employer filing my H1B Cap in Apr 2014 ,but I wanted to move out from the company as they are not processing GC in an case .However is this a good idea to file another H1b from some consultants who us ready to tike GC soon after I join them.

Please advice.

Thanks Sri .

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Hi,

I have the following queries which needs to be addressed on urgent basis .

I am currently on L1B visa . I have been interviewed in a hospital (non profit) for systems analyst position through consultancy and are impressed and would like to hire me however i have the following queries which helps to get me a clear pictureo f how to handle the visa situation  My queries are as follows

1. Does all non profit organizations are cap exempted ?

2. The company wants that my visa to be processed by the consultant( profit organization) and after 3 months they will transfer me into their full time payroll and are ready to provide required documentation if i am eligible . In this case am i eligible to apply for Visa on cap exempt basis ?

Thanks

KSNR

Your initial H1B petition is a cap subject one. All your later petitions are cap exempt as long as you have not utilized max allowed of 6 years stay on H1B and L1B.

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Hi,

1. Is it possible to apply for two H1B petitions for same employee, but different employers?

2. If so, what are the consequences/procedures that USCIS takes in to consideration for that specific employee?

3. Would there be any chance of rejection solely based on the two applications for the same employee, but differetn employers

4. If lucky enough to get lottery selected of both applications, then it is reducing the chance of another person's H1 Petition in the lottery;

    How fair is this approch and USCIS treats this scenario?

 

Thanks,

1. Yes.

2. Standard procedures are followed.

3. No.

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Hi

Wanted to check ,if there us any rule around filing H1b's .

I am on L1b ,present employer filing my H1B Cap in Apr 2014 ,but I wanted to move out from the company as they are not processing GC in an case .However is this a good idea to file another H1b from some consultants who us ready to tike GC soon after I join them.

Please advice.

Thanks Sri .

Yes, a consultant can file a H1B for you. Based on H1B abuse by consultants I would ask you to stay away from them.

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hi attorney _25 

i have my visa h1b until 2016 sept and i I-94 validity too for same date 

can i go to india or canada for one year and come back to usa .

without having any issues

Yes, you can as long as H1B petition with employer is valid. If not either current employer applies for extension or new employer files a cap exempt H1B petition.

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Hi All,

 

Please suggest :-

 

Can I file H1B with multiple employers?

One of the employer already got the offer letter signed from me, can he create any trouble if I choose to go with other employer?

Somewhere I read USCIS can create problems if they see your multiple petitions from different employers and it will generate RFE in this case?

Do I need to tell all employers that I'm filing H1Bs from different employers?

 

Regards,

Harry

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Hi All,

 

Please suggest :-

 

Can I file H1B with multiple employers?

One of the employer already got the offer letter signed from me, can he create any trouble if I choose to go with other employer?

Somewhere I read USCIS can create problems if they see your multiple petitions from different employers and it will generate RFE in this case?

Do I need to tell all employers that I'm filing H1Bs from different employers?

 

Regards,

Harry

You cannot file but multiple employers can.

If in offer letter there is a statement that you are liable for damages if you fail to join them then it is a possibility.

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Thank you for answering my previous question.

Can multiple employer file H1 b fir the same employee with different client letters. Is there any rule in 2014 they wanted to strictly follow for rejecting the H1b cap if the same application comes to them with different employers.please advise.

Thanks

Sri

Multiple employers can file H1B petitions for same employee. But, multiple H1B petitions cannot be filed by same employer for same employee.

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This should answer the above questions. Where the question was not clearly H-1B cap related, I did try to phrase it in a way to relate it to filing of cap petitions.

 

1. Cap-Exempt Employers.

We may want to discuss cap exemption in more detail in another thread. However, for the purposes of this thread, the following employment is exempt from the H-1B cap:

  • 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.

Those are the particular non-profit or government institutions that are permitted exemption from the cap - not all non-profits. Note the terminology is employment “at,” not by, which means you may be employed by a for-profit consulting company if you are assigned to the nonprofit/public/governmental education or research institution, and still qualify for the exemption. There are various permutations that may work, and it’s best to consult with a qualified attorney (such as the attorneys at Murthy Law Firm) who will be able to evaluate whether certain employment is cap-exempt.

 

If you are not absolutely sure that USCIS will accept your employment as exempt, it is a good idea to first file under the cap, and then if that petition is rejected for some reason, go forward with the cap-exempt attempt. Filing under the cap is also preferable because it makes it easier to change employers later on.

 

Here are a couple news articles which discuss that last point of cap-exemption: Moving from Cap-Exempt to Cap-Subject H1B; Cap Exemptions for IMGs Completing Graduate Medical Training in H1B Status.

 

2. Petitions by multiple employers.

It is possible for more than one employer to file a petition for the same employee at the same time. This does not present a problem unless information in the two petitions is contradictory – for example, showing different schools or majors for your bachelor’s degree (i.e. indicating possibility of fraud/misrepresentation). 

 

Merely having petitions filed by two employers should not cause an RFE. If two petitioners state that they both have the same end client project for the same employee, it could cause a query about who is the true employer. If you have this situation, you may want to discuss it in more detail with a qualified attorney.

 

It may be a good idea to see what you have promised each employer in the employment agreement you have signed with them (if any) to see if you will have any contractual problems when you fail to join that employer after they have filed a petition for you, but that is not an immigration issue unless the contract requires you to re-pay the H-1B costs that the employer is required to pay. (It may be a good idea to consult with an employment law attorney before signing a binding employment agreement, if you have the means to do so.)

 

Note that the same employer is not allowed to file two petitions for the same employee under the cap – doing so will disqualify both petitions from the lottery.

 

3. Choosing employer based on GC process.

 

There's a lot regarding your personal needs and preferences that goes into dealing with this issue. You are going to want to have your GC process started well before the end of your first 6 years of H-1B status, and absolutely should have started the process by the end of your 4th year to allow for delays. Other than that, it may be a good idea to locate an employer with integrity and stability before starting the GC process, as if you start the process and cannot go through at least to the point of having an I-140 approved, then you will have wasted all that time when you start over with the next employer. Your priority date is not established until an I-140 petition is approved for you.

 

The green card process is for a future status and you and the employer are supposed to maintain the intent for you to be employed by the employer at the time you receive your permanent resident status, which could be many years into the future. Generally, this intent is proven by actually working for that employer for a fair period of time before your GC is approved, although it's not required to be. It is certainly a good idea to chose an employer that you plan to stay with longer-term.

 

You may want to review www.Murthy.com for articles on the green card process/PERM process/priority dates, sign up for the Murthy Bulletin for timely updates, and strategize with a qualified attorney before you make a decision.

 

4. Entering the US on an “old” approval.

 

Generally, USCIS doesn’t want an employer filing a petition for “speculative” employment. That means, if there is not immediate employment available, USCIS may deny the petition. However, once the petition is approved, there is no requirement to use it within a certain period of time. Obviously the visa must be obtained and the travel must be completed before the petition expires. It is theoretically possible that the consulate might question whether the employment really existed at the time the petition was filed, and send the petition back to USCIS to revoke. However, generally this doesn’t happen, and a visa can be obtained on an “old” petition as long at the petition is still valid and the employment still exists. Travel theoretically could be completed up to the date of expiration of the visa. However, if you travel on the last day you 1) should have an approval notice in hand for a longer H-1B period or, 2) may need to show that a petition for extension of your status would arrive at USCIS on the same day, which really isn’t practical.

 

This thread will be closed momentarily.

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H1b approval I-797A expired in 2011, out of country since 2009, am I cap exempt?

H1B was approved under Master's quota in 2008. Worked for few months and moved out of USA in 2009. Couple of attorneys who I approached say it will be considered cap exempt while others say it is not cap exempt and should go through the 2014 Apr 1 cap. Please advice.

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H1b approval I-797A expired in 2011, out of country since 2009, am I cap exempt?

H1B was approved under Master's quota in 2008. Worked for few months and moved out of USA in 2009. Couple of attorneys who I approached say it will be considered cap exempt while others say it is not cap exempt and should go through the 2014 Apr 1 cap. Please advice.

 

You have the of being cap exempt or going through cap again.

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reachme121, the reason you get differing answers to this question is because there is a disconnect between the wording of the law and how USCIS actually applies the law. The law requires every H-1B petition to be counted against the cap unless exempt. One exemption is having been counted against the cap within the previous 6 years. However, USCIS consistently treats persons whose cap-counted H-1B petitions were approved over 6 years previously as exempt from the cap. Occasionally they may reject or deny a petition because they've decided that it's just been too long since that person was last counted, but I haven't personally seen these rejections/denials.

 

The law also states that there is a 20,000 US Masters "exemption" from being counted toward the H-1B cap, but USCIS treats this exemption as 20,000 visa numbers actually being added to the cap, such that a person whose petition was accepted under the US Masters exemption is considered to have been counted against the cap rather than exempted from the cap. If this were not the case, a person qualifying under the US Masters exemption would have to re-qualify under the relevant fiscal year's exemption each separate year that another petition is filed for him, or would have to be counted in the regular cap. However, this is not what happens.

 

In your case, if your next petition is approved within 6 years of the approval date of your prior petition, you are within the technical wording of the law to be exempted from the 2015 fiscal year cap (putting aside the rejected interpretation of the US Masters exemption discussed above). In reality, you should have no problem having a petition approved for this coming fiscal year.

 

For others in similar situations whose petitions were approved prior to 2008, again, USCIS has in practice considered them counted and exempt, but having a non-cap petition filed for them is risky. USCIS may take all those filing fees and then deny the petition. The petitioner has to decide whether it is worth the risk. The risk can be avoided by filing a cap-subject petition on April 1 (through April 7), so this is advisable for those who are able to do it. Once the cap is reached, it may be worthwhile to try a cap-exempt petition.

 

As you have been out of the US for over a year, it may be beneficial to you to be counted against the cap again, starting a new 6 years. If you apply as having already been counted, you will only be allowed to complete the time remaining of your previous 6 years (which appears to be about 5 years). Again, if you are not selected in the lottery, you could then have a cap-exempt petition filed for you. Your decision will also depend on whether you want to start working as soon as the petition is approved, or have the luxury of waiting until October 1 to start work.

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IMPORTANT: If you want a cap petition or US Masters-exemption petition filed for you for the 2015 fiscal year starting October 1, 2014, you need to have the process started NOW.

The petition must be filed with a certified LCA, and it takes a minimum of 7 business days to have the LCA certified after submission, plus it takes time to prepare the LCA for submission. In addition, information and documents must be gathered, and forms and letters must be prepared and signed, checks written, and all of that needs to be done by March 31, 2014 to have the petition submitted timely.

Please see http://www.murthy.co...rvices/hire-us/ for information on scheduling a consultation (by phone or in-person) to discuss your specific situation with one of our experienced immigration attorneys.

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