We have recently been receiving numerous inquiries regarding individuals currently working with H-1B cap-exempt employers who wish to transition to H-1B cap-subject employers. We have posted this article in efforts to clarify the cap-exempt to cap-subject process for individuals who have never previously worked for a cap-subject employer.
According to the H-1B portability rules, changing jobs to a cap-subject employer requires the filing of a cap-subject case during the lottery. It is generally difficult for an individual working for a cap-exempt employer to transition to a cap-subject employer after the H-1B cap for the year has been reached. While working for a cap-exempt employer, the individual was never required to apply for the H-1B lottery, and therefore was never counted under the H-1B cap. This means that the once cap exempt employee is now subject to a host of rules, restrictions, time constraints, and competition that s/he did not previously face.
While working for a cap-exempt employer, the individual was never required to apply for the H-1B lottery and therefore was never counted under the H-B cap. This means that the once cap-exempt employee is now subject to a host of rules, restrictions, time constraints, and competition that he or she did not previously face.
As most are aware, the cap numbers are extremely limited when compared to the number of applicants. Only 20,000 visa numbers are available for those falling under the master’s cap. If USCIS receives more than 20,000 petitions requesting an advanced degree exemption during the first five business days, it uses a lottery to randomly select the 20,000 petitions before conducting the lottery to select petitions under the bachelor’s or regular cap.
The Master’s Cap
The benefit to the master’s cap or advanced degree cap is that individuals in this category essentially get “two bites at the apple”. The petitions that are not selected for the advanced degree exemption will be entered into the lottery for the regular cap. Only 65,000 visa numbers are available for those falling under the bachelor’s or regular cap.
To qualify for the master’s cap or the advanced degree exemption, the individual must have a master’s degree from a U.S. institution that is both accredited and public or not for profit. It’s important that individuals who have not previously submitted cap-subject petitions be sure that their U.S. master’s degrees are from non-profit or public institutions.
If that institution is for-profit, even if the petition is selected, it will ultimately be denied. In that case, you will not be eligible for “two bites at the apple” and your employer will need to petition for you again next year. Individuals should also double check to ensure that their university’s accreditation was not revoked subsequent to their attendance due to violations, denying their ability to apply under the master’s cap.
The Regular Cap
To qualify for the bachelor’s cap or the regular cap, the individual must have obtained a U.S. bachelor’s degree or its equivalent. Individuals who have obtained a master’s degree from abroad fall under this cap.
Anyone with a foreign degree will need to obtain an educational evaluation from a recognized evaluation agency. This provides USCIS with evidence of their academic qualifications for the specialty occupation position. These evaluations can generally be obtained in less than a week and should be submitted either with the initial petition or at the time of a Request for Evidence.
Some individuals who are trying to transfer from H-1B cap-exempt to cap-subject employers for the first time wrongly believe that filing for premium processing will increase their chances of being selected in the lottery. Premium processing does not increase the chances of a case being selected; rather, it is an optional service provided by USCIS that allows for the processing of a petition within 15 calendar days of filing for an additional fee of $1,410.
USCIS usually posts a notice on its website indicating the exact day when the 15 calendar day processing time period begins. If the H-1B case was selected in the lottery, USCIS premium processing service center sends out both an electronic email receipt and a hard copy receipt to the petitioning employer confirming that the case was chosen in the lottery. If no email or hard copy receipt is received within a reasonable time period, then the case was not chosen.
If a case is filed with regular processing and it is selected in the lottery, a hard copy receipt is issued to the petitioning employer within approximately two months of the filing date.
As a cap-subject employee of an approved H-1B petition, the individual can only start working on October 1st. of the year that the petition was approved.
Concurrent employment with H-1B cap-exempt and cap-subject employers
Under certain circumstances, an individual may be able to work for an H-1B cap exempt and cap-subject employer concurrently. In order to do so, the employee must continue to work at least part-time for the cap-exempt employer. While the employee is working for the cap-exempt employer, a cap-subject employer may file an H-1B petition for part-time employment on behalf of that employee.
If the petition is approved, the employee will be able to work concurrently for both employers. It is important to note that if the employment with the cap-exempt employer were to end for any reason, the H-1B status with the cap-subject employer will also be terminated.
How Our Immigration Attorneys Can Help
The areas of H-1B cap-exempt and cap-subject petitions can be quite confusing and hence its best to seek the advice of a qualified immigration attorney. H-1B is an extremely popular employment visa option and hence is sought by many employers and employees alike.