| | Some of the Common Misunderstandings Regarding the Annual H-1B 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. 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. 1) 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. 2) 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. http://www.greencardapply.com/news/news13/news13_0221.htm http://www.greencardapply.com http://www.greencardfamily.com
|
