Shedding Light on H1B Cap Misunderstandings

As we approach the H1B cap-filing season for fiscal year 2015 (FY15), we wish to clarify some of the common misunderstandings regarding the annual limit or cap. Given the stress and timing considerations that accompany H1B cap-subject filings, it is important not to improperly assume that a particular case needs a cap number. Based on questions that come into the Murthy Law Firm, many believe that, when reverting to H1B status from another nonimmigrant status, an individual automatically becomes subject to the H1B cap. Others believe that being counted against the H1B cap is a way to become eligible for more H1B time. These matters are clarified here for our readers.

Changing Status Does Not Make a Person Subject to Cap

As a general and oversimplified explanation, most people only need to be counted against the H1B cap once. The rule regarding the cap references being counted within the six years prior to the petition. However, even those requesting extensions beyond six years do not need to be counted against the H1B cap, if they have previously been counted. This general rule holds true even if one changes to a different nonimmigrant status in the interim.

Example

Ajay has held H1B status for two years through a cap-subject employer. He is married to Sunita, who is also in H1B status. If Ajay loses his job, he could change to H-4 status as the spouse of Sunita, in order to remain in the United States legally. Once he finds a new job, his new employer could file an H1B petition in order to change Ajay’s status from H-4 to H1B. This petition would not be subject to the H1B cap. It could be filed at any time during the year, with any desired date for the start of employment (no requirement to start work from October 1st or file by April 1st). The same concept applies to individuals who change from H1B to F-1 (student) status, who then wish to resume H1B status at a later time.

This application of the general rules is important as one’s options are weighed. In the current economy, many are experiencing job instability. At the Murthy Law Firm, we sometimes receive inquiries from H1B workers who have been laid off or who anticipate losing their jobs. They wish to maintain their status. One option for some of them is to change status to H-4 through an H1B spouse. However, some are reluctant to change to H-4 as they mistakenly believe that this action somehow will make them subject to the H1B cap. They fear that this potentially will make them unable to work for an extended period, and prevent them from returning to H1B status as soon as they find a new employer. This fear is simply not warranted under the law.

Filing a Cap-Subject Case Does Not Give Extra H1B Time

Many seem to misunderstand the function of the H1B cap. The cap is an annual limit on the number of new H1B workers. These new workers would be eligible for a maximum of six years in H1B status, subject to certain exceptions allowing additional time. Our firm often receives questions from individuals seeking a way to become eligible for more than six years of H1B time. They usually are close to the end of their six-year H1Bs and, erroneously, assume that it is possible to simply file another cap-subject case to acquire six more years of H1B time. This is not correct.

Generally, in order to be eligible for a full six years of additional H1B time, it is necessary to leave the United States for one year. After that year, one becomes eligible for six more years, but must be counted against the numerical cap anew. In some cases, if the person has not used all six years in H1B status before leaving, there could be an option to return for the unused “remainder” time (without becoming subject to the cap). The other options for eligibility for more H1B time require the filing of an employment-based permanent residence (green card) case at least 365 days earlier, or obtaining an I-140 immigrant petition approval when the priority dates are not current.

Example 1

Binoy has held H1B status for five years. He wants to stay in the United States beyond the six years of H1B time allowed. He proposes filing a cap-subject H1B case in April so that he can get more H1B time.

No, this is simply not an option. Binoy could leave the U.S. for at least one year in order to become eligible for more H1B time. Otherwise, he needs to have an employment-based green card case filed in time to meet the legal requirements for an H1B extension. Strategies for those who are nearing the end of their six years of H1B time should be discussed with a Murthy Law Firm attorney.

Example 2

Chandini has held H1B status for 3 years, through her job at a university. Universities are cap exempt, thus she has never been counted against the H1B cap. She wants to change to a job in industry, with a cap-subject employer. She asks if this means that she is eligible for six more years of H1B time.

No. While Chandini would need to be counted against the cap to change to a cap-subject employer, she would not be eligible for more H1B time on this basis. She would be eligible for the remainder of the time in her six-year limit. If she wants more than six years of H1B time, she will need to leave the U.S. for a year, or have a qualifying green card case filed.

Conclusion

Individuals often make incorrect assumptions regarding the H1B cap. We hope that our explanations of these two common misunderstandings help our readers to better understand their options and limits. Those with questions, or other situations about which they are unsure, are welcome to consult with one of our knowledgeable, experienced attorneys at the Murthy Law Firm.

Originally posted 27.Nov.2012, this NewsBrief has been updated for MurthyDotCom readers.

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