Today is the first day that employers may file H1B petitions for FY 2011. We certainly released our cases on time yesterday, and are still open to new cases as long as the H1B cap will remain open.
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period.
The current law limits the cap of H1Bs to 65,000 as the number of aliens who may be issued an H1B visa or otherwise provided H-1B status. In addition, all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap. This means that contractors working at, but not directly employed by the institution may be exempt from the cap.
H1B Visa renewals and Extensions of stay however do not count towards the annual limits. Transfers of H1B visas among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt. Therefore, despite the numerical limitations we can prepare and file your case for an extension of stay provided the maximum 6 year has not yet been fulfilled.
What other situations will allow a petition to avoid the H1B Cap? How to ensure ensure that an H-1B petition will be accepted for filing and not be counted against the cap in the following situations. What boxes on Form I-129, Part 2 and Supplement I-129 Part C should be marked?
(1) H-1B Beneficiary is abroad holding a USCIS H-1B Approval notice with start date of Oct 1, 2009. The H-1B Beneficiary’s current petitioner has indicated that they will not be bringing alien on until late 2010. A second employer seeks to file a petition requesting concurrent employment for this Beneficiary which will enable Beneficiary to come into the country on Oct 1, 2010.
(2) H-1B Beneficiary is abroad holding a USCIS H-1B Approval notice with start date of Oct 1, 2009. The H-1B Beneficiary’s current petitioner has not ever brought this beneficiary into the U.S. A new employer now wishes to file a petition requesting a change of employer for this Beneficiary which will enable Beneficiary to begin working immediately.
(3) H-1B Beneficiary is abroad holding a USCIS Approval notice & H-1B Visa with start date of Oct 1, 2009. Beneficiary’s current employer does not seem willing to commit to a definite start date. A new employer wishes to file a petition requesting a change of employer for the beneficiary.
INA 214(g)(7) states that any alien who has already been counted within the 6 years prior to the approval of an H petition toward the numerical limitations shall not again be counted towards those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.
8 CFR 214(h)(13)(iii)(A) also states that an H1B alien who has spent 6 years in the US as an H1B visa holder may not seek extension, change status or be readmitted unless the alien has resided and been physically present outside the US for the immediate prior year. If these are read in conjunction, the alien has already been counted against the cap when he was first petitioned and approved for H1B status.
Alien would not be eligible for another full 6 years since alien has not been admitted to the US and then left and resided abroad for 1 year. Alien has never been admitted so the allowance of 8 CFR 214(h)(13)(iii)(A) for a renewed 6 years would not apply to alien.
USCIS will take into consideration whether an H-1B visa number has already been counted against the cap based on a previous H-1B approval if the forms are clearly marked with this request. USCIS advises that the open space in Part 2 of Form I-129 can be used to make a note such as “Not Subject to H-1B cap; previous H-1B approved SRC # ________” or something similar. The same should be clearly marked on the Form H-1B Data Collection Supplement at Part C. Furthermore, a copy of the previous H-1B visa I-797 approval notice should be enclosed and an explanation of why the H-1B should not be counted against the cap can also be stated on the Employer cover letter.
The H1B Petition process is complicated, make sure to consult an experienced Attorney when attempting to file for your workers.