January 15

H-1B Cap Exempt Candidates

Much of the anxiety surrounding filing for an H-1B visa stems from the cap on H-1B visas. Most people are aware that the general cap on H-1Bs is set at 65,000 annually with an additional 20,000 visas available for foreign nationals who hold a U.S. master’s degree.

There are, however, several other instances in which the cap does not apply. These circumstances are known as cap exempt. Selecting a candidate who qualifies as cap exempt can ease the difficulty of obtaining an H-1B visa for an employee.

H-1B capExempt candidates can also include those in the following categories.

Domestic candidates who have already counted against the H-1B Cap

The H-1B cap is for new employment only. If a candidate living in the U.S. has counted against the H-1B cap in the last 6 years, they will not be counted a second time.

Even if the cap has been reached, the candidate’s status can be amended, extended, or changed during this time period. Changes may include moving employers or beginning to concurrently work in another H-1B position.

Candidates living abroad who have previously been granted H-1B status

If a candidate was granted H-1B nonimmigrant status within the past 6 years and is currently living abroad, they are not subject to the cap and may enter the US on their H-1B for the remaining portion of their six years.

Students in F-1 status

Applies to Students currently in F-1 status who have completed a STEM degree and been approved for a post-completion OPT period.

These students are eligible to apply for a 17 month extension of the OPT for a total of 29 months in OPT. If the H-1B cap is reached before the employer files a petition, the student can utilize the 17-month extension to remain in the U.S. until the beginning of the next H-1B filing period.

Beneficiaries who have received employment offers at institutions of higher education

This includes not only those organizations defined by federal regulation as institutions of higher education but also any related or affiliated nonprofit entities, nonprofit research organizations, and/or governmental research organizations.

Spouse and children of H-1B beneficiaries

The legal spouse and any minor children (unmarried and under the age of 21) do not count against the cap.

Some Applicants from Chile & Singapore

Also related to the cap is a special trade agreement between Chile and Singapore. Chile will receive a maximum of 1,400 H-1B visas while Singapore while receive 5,400.

These visas are subtracted from the overall cap on H-1B visas. If they are not utilized, they are added to the cap between October 1 and November 15 of the following fiscal year.

Exempt & Nonexempt employment status

Lastly if an H-1B beneficiary is concurrently employed with both an exempt and a nonexempt employer, they will not be counted against the H-1B cap.

Utilizing cap-exempt candidates can help employers fill critical positions within their organization with H-1B workers without being overly constrained by the standard H-1B cap.

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.

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