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10Oct, 14

In light of the recent 2015 cap season, we have witnessed that, like all years, the 85,000 limit on H1B work visas (65,000 for H1B regular cap and 20,000 for H1B U.S Masters Cap), was reached within few days of opening. The H1B cap limit needs to be revisited. Executives and founders of top notch companies like Google, Yahoo, and Facebook have been very open about their views on increasing the number of work visas available to hire foreign skilled workers. A lot of speculation has been looming around this H1B cap count increase, with constant lobbying from executives, but the development has been insignificant.

The small wriggle out of this rule is if the foreign worker had been granted a valid H1B visa in the past 6 years. If the foreign worker had been subject to a H1B cap in the past 6 years and was subsequently granted a H1B visa in the past 6 years, then he or she can apply for H1B as a cap exempt beneficiary without the hassle of being subject to the lottery. One of the many advantages of this exemption is that the beneficiary of H1B cap exempt petition can begin employment once H1B petition is approved and the beneficiary does not have to wait for the start of the fiscal year to begin their employment. The term “H1B granted in the past year 6 years” would mean that an employee who has a H1B approval and was subject to a H1B cap within the past years would be considered H1B cap exempt employee. For example, a person whose H1B approval was granted in the cap year of 2010 is considered a H1B cap exempt employee for 2015 cap but an employee whose H1B approval was granted in the cap year of 2000 will not be considered H1B cap exempt because his H1B was not granted within the past 6 years. We are seeing a recent surge of cases from our clients requesting to capture unused H1B period of beneficiaries even when they were selected in H1B cap more than 6 years ago. Based on USCIS’s own memo providing for capturing of old unused period even prior to 6 years, we have been able to claim the unused period and have gotten H1B petitions approved.

However, petitioners applying for an H1B as a cap exempt beneficiary must be very diligent before submitting H1B petition to USCIS. There have been mixed response’s from USCIS in this area and the petition must be supported with the requisite supportive documentation. This is a very interesting situation in the H1B arena and might prove to be very helpful to employers who wish to employ H1B skilled workers to fulfill the skills shortage.

In order to avoid denials, it is important to consult with an immigration attorney before determining your eligibility under the H1B cap exempt category. We have been handling a significant number of H1B cap exempt cases and would be happy to assist you in determining if you qualify under the provision.

Contributed by Pragnya Sudheendra. She is a member of the firm and handles US Immigration matters. She has obtained her Masters of Law (LLM) from Benjamin N. Cardozo School of Law, Yeshiva University. Prior to obtaining her master’s degree, Ms. Sudheendra graduated with a Bachelor’s of law degree (BA.LLB) from Bangalore University. She is admitted to practice law in India and is awaiting her NY bar exam results at the time of publishing this article.


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