hiring h1b cap exempt employees

The Fiscal Year 2017 (April 1, 2016) H1B filing deadline is fast approaching and this year promises to be just as competitive as last year. The number of qualified candidates continues to dwarf the H1B visa cap which has not been increased despite last year’s record number of submitted petitions. The cap for the 2016 fiscal year was reached within one week of the first day USCIS began accepting petitions.

H1B Cap Exempt Candidates

Uncertainties on how to properly hire cap exempt employees are not uncommon. Employers should realize that although the H1B visa cap is set at 65,000 petitions, there are numerous H1B Cap Exempt scenarios that they may be able to take advantage of once the initial H1B cap has been exhausted. Employers who wish to utilize these potential scenarios must first have a clear understanding of them as not every H1B petition is subject to the cap.

Candidates Inside the U.S. Who Were Already Counted Against the H1B Cap

Employers may be able to hire H1B candidates who have previously been counted against the H1B cap in the last six years. This is because they will not be counted a second time. It is also useful for U.S. employers to know that regardless of whether the cap is reached, USCIS will continue to process petitions that seek to do the following:

  • Extend the amount of time a current H1B worker may continue to remain in the United States.
  • Amend certain terms of employment for a current H1B worker.
  • Allow for an H1B worker to change their employer.
  • Permit an H1B worker to continue or to begin to work concurrently in an additional H1B position.

Considerations When Changing Employers

If a decision is made to file an H1B petition that seeks to change the H1B worker’s employer, then the petitioner should first verify that the foreign national is not in fact transferring from a cap exempt employer and/or position. This is because if the beneficiary was not in fact counted towards the cap previously then, he/she is subject to H1B cap restrictions. This means employers would not be able to file a petition to transfer on their behalf unless the cap is open and a quota-based H1B is available.

American Competitiveness in the 21st Century Act (AC21)

According to the provisions set forth under the American Competitiveness in the 21st Century Act or AC21, a new H1B candidate may begin work for their respective employer as soon as the H1B petition has been filed. This means that H1B workers may begin working before an actual approval has been rendered.

Candidates Outside the U.S. Who Were Granted H-1B Status Previously

Candidates who were previously awarded status as an H1B worker in the past six years, have not fully exhausted their six year period, have spent a full year outside of the U.S. since their last exit date, and are currently living abroad are not subject to the H1B cap. This means that they may have the option to reclaim/utilize any remaining portion of the six years that was originally awarded.

STEM Students Maintaining F-1 OPT Status

Employers may seek to utilize foreign students who meet the following criteria:

  • They are maintaining an F-1 status.
  • They have completed a qualifying degree in the Science, Technology, Engineering or Mathematics (STEM).
  • They are approved for a post-completion OPT period based on their designated STEM degree.

Individuals who fit this criteria are eligible to apply for a 17-month STEM extension of their post-completion OPT. In total, this makes 29 months of OPT which is a considerable amount of time. If the H1B cap is reached before an employer is able to file an H1B petition on behalf of these individuals, the 17-month extension will allow them to remain working in the U.S. until the beginning of the next H1B cap season.

Contact KPPB Law For H1B Visa Assistance

With the competitiveness of the H1B cap and the complexities of hiring cap exempt employees, it is essential for employers to utilize professional legal assistance. The experienced immigration attorneys at KPPB Law have managed over a thousand H1B visa cases. Contact our firm for a consultation to discuss your options. We can advise you on the best course to pursue and help you achieve your goals this H1B season.

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Beeraj Patel, Esq.

Partner at KPPB Law
Beeraj Patel's philosophy is simple - make it easy for talented and ambitious individuals to have access to immigration materials so that they can make the choice which is right for them.

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