Tuesday, March 19, 2019

SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

All H-1B cap cases must be filed by April 1, 2019.  In anticipation of that deadline, here are seven things to remember about the H-1B cap.
 
1. These types of cases are subject to the H-1B cap: 
·    International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
·     International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
·     Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
·     Prospective international employees currently living abroad.
 
2. These types of cases that are not subject to H-1B cap: 
·     H-1B amendments/extensions/transfers
·     When the employee has been in H-1B status for less than 6 years
·    Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada,  Mexico
·     MDs who have received a J-waiver of their 2 years foreign residency requirement.
·     H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.
 
3.  Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs an H-B cap lottery, including all cases.  This is for the 65,000 H-1B regular cap slots.  Then, the USCIS runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. 
 
4.  Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.
 
5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.
 
6.  We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.
 
7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible, the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.

3 comments:

  1. This comment has been removed by the author.

    ReplyDelete
  2. This comment has been removed by the author.

    ReplyDelete
    Replies
    1. It depends entirely on your case. You should consult with a lawyer before acting.

      Delete