H-1B Cap and Cap Gap

H1B cap gap Chicago Immigration lawyers

What is H-1B Cap?

The Immigration Act of 1990 imposed an annual numerical limitation on new admissions in the H-1B category.  Due to this H1B numerical limitation (a.k.a. H-1B cap), an H1B number must be available at the time a new cap-subjected H1B petition is adjudicated.  Generally, there are three major types of H1B visas and each of them are subjected to different H1B numbers or H-1B cap.

 Who is subject to H-1B Regular Cap?

Each year Congress will make available an annual limit on the number of H-1B visa admissions.  Such annual H-1B numerical limitation (H-1B cap) is set at 65,000 with 6,800 ( approx. 10.5%) H-1B being set aside for professionals from Chile and Singapore under the Free Trade Agreements (FTAs) with these countries.  The overall H-1B numbers are 58,200 in the standard H-1B pool, plus any unused H-1B visas from a prior fiscal year.

 H-1B Advanced Degree Cap

An exemption from the H-1B regular cap of 65,000 is the H-1B advanced degree cap.  This cap exempted H-1B, exempt 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. As long as the 20,000 slots are still available, applicants with a U.S. advanced degree is able to make use of this cap for their H-1B filings.  After the 20,000 slots are filled, the immigration will apply the advanced degree petitions against the standard annual cap of 65,000.

Who is exempt from H1B Cap?

Not all H1B visas are cap subject as there are some that are exempted from the the cap without regard to the number of such H1B cases that are filed. These H-1B cap exempted categories may be filed at any time during the fiscal year.  These included:

  1.  Institutions of higher education;
  2. Related or affiliated not-for-profit entities;
  3. Not-for-profit research organizations or governmental research organizations.

If an H-1B petition is accepted and ultimately approved, that beneficiary is generally entitled to 6 years of H-1b time inside the United States.  H-1B petitions are employer specific.  It is often permissible for a H-1b beneficiary to change employers, provided a new H-1B employer files a new H-1B petition that is eventually approved.

Change of Status from F-1 to H-1B

A change of status from a F-1 student to H-1b visa occurs when a foreign national who is qualified for H-1B status is already present in the United States on a F-1 student status.  A common scenario is that a foreign national comes to the U.S. as a student, pursuing a course of studies at an approved U.S. university.  Upon graduation or after the optional practical training (OPT), he/she is hired by a U.S. employer to work in a position of specialty occupation.  Once the H-1b visa is approved, the beneficiary will have to change his/her F-1 status to H-1b status. However, approval of a change of status application does not authorize the F-1 student to stay in the U.S. during the “cap gap” period.

H1B and OPT Gap Cap Extension

H-1B cap gap typically refers to a time period between the completion of a course of study or expiration of OPT and the date that a timely filed cap-subject H1B petition and change of status take effect.  Since many cap subject employers must start the H1B application process by March/April, the legal status of the H-1b beneficiary who is commonly a F-1 status may expire prior to October 1st, the commencement date of H-1B visa.  In such situation, the H-1b beneficiary must remain his/her lawful status from the time the H-1B petition is filed to the time the H-1B visa becomes effective.

Travel outside of U.S. during H-1B Cap gap

Whether or not a F-1 student should travel during his/her H-1b cap gap period depends on upon very specific situations, such as:

  • whether the student is still in an ongoing course of study or ongoing OPT, or
  • whether the student is in the “H-1B cap gap” period; or
  • whether the student has a timely filed H1b petition; or
  • whether the student has timely filed his/her change of status petition;
  • whether the student’s OPT is still valid etc…

If you are a student and would like to know more about H1B visa, please contact Cipolla Law Group at 773-687-0549 in advance of making any travel plans. We are conveniently located in Chicago, Illinois.

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