Specific Issues About H-1B


As the date of April 1 is drawing near, H-1B visas available for next fiscal year will be released. Herein, let’s have a review that the cap of H-1B was used up on November 22 in 2011. However, the US economy has been recovering for last several months, which is reflected on the higher seasonal economic growth and lower unemployment rate. It will also affect positively on foreigner worker employment market. Therefore, we suggest every potential H-1B applicant as well as employers who have some foreign worker recruiting plan monitor the usage of H-1B carefully.

Besides, this article will discuss two specific issues about some Specific H-1B cases: the H-1B cap-gap issue for OPT students and H-1B transfer from a cap-exempt employer to a cap-subject employer.

H-1B cap-gap issue:

As we know, new H-1B will take effect on October 1 every year. Basically, this is the date when H-1B visa holder is eligible to work for the petitioner employer. However, for a OPT student, his OPT period will be very likely end before October 1, usually expires on June or July, so does his/her F-1 status. There are several months before October 1 during which the student will lose his/her employment authorization and F-1 status. It is referred as the “gap”. Fortunately, regulation provides ground to fill this gap known as cap-gap extension.

Basically, If your H-1B was filed while your OPT status had not yet expired and your H-1B requires a start date of October 1, you will be covered by this cap-gap extension.  This automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.   You can continue working during this period. Even if your H-1B petition is pending after October 1, you can work until the H-1B petition adjudication process has been completed if your H-1B was filed before your OPT expires. 

However, if your H-1B petition is filed during the 60-day grace period after expiration of the OPT, then you cannot work. Under this circumstance, you still can legally stay in US and wait until your H-1B petition’s adjudication.

Please be noted that If USCIS denies your H-1B case, you will have the standard 60-day grace period from the date of the denial notice before you are required to depart the United States. Another heads up is that you cannot travel outside the US and come back in F-1 status during the cap-gap extension period. If you travel abroad, you will need to apply for H-1B visa and enter no more than 10 days before October 1 if your H-1B petition gets approved.

H-1B Portability Rule’s special application of H-1B Transfer from a cap-exempt employer to a cap-subject employer:

If the alien whose work had been subject to the cap in the past six years and wants to quit his/her job with Employer A and start his/her employment with Employer B, AC 21 portability rule can allow the alien worker to transfer his or her employment to the new employer prior to the approval of the petition by USCIS. Like the petitions above, such petitions are not subject to the cap either.

Then what if a H-1B holder who worked for a cap-exempt employer and never subject to the cap in the past six years wants to port to a cap-subject employer? There are two situations regarding whether there is still any H-1B quota remained.

When there are H-1B visa numbers available, by virtue of portability rule, an employee can port from a cap-exempt employer to a cap-subject employer. However, be noted that under such circumstance, if the H-1B transfer petition is approved before October 1 of the fiscal year, the employee should stop working for the new employer at the time of approval and wait until October 1. 

However, when the H-1B numerical limitation has been met for the fiscal year and an employee of a cap-exempt H-1B petitioner wishes to move to a cap-subject employer utilizing the H-1B portability to start work immediately at the new employer, an argument could be made that the H-1B petition filed by the new employer is frivolous and thus will be denied.  USCIS also made it clear that it will only approve an H-1B petition filed under these circumstances if the beneficiary does not cease to be employed by the cap exempt petitioner. See USCIS Memorandum, D. Neufeld,  “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)”  (May 30, 2008)  Source: USCIS Memo May, 30th 2008

For instance, John is a university researcher (cap-exempted) and currently in H-1B status. He finds a new job in the private sector and his private employer will petition for an H-1B visa for John. John has never been counted against the H-1B quota when he was employed by an institution of higher learning. Therefore, if currently the H-1B quota is used up, he may not port to the new employer. However, if there are still any H-1B numbers available, he can enjoy the portability rule to transfer and start working for the new employer as long as the USCIS receive the transfer petition.  However, he should also be noted if his transfer petition is approved before October 1 of the year, he should cease to work for the new employer at the time of approval and can only resume the work after October 1.