What Can You Do If You Missed the H1B Visa Cap?

The H1B work visa is a much sought after non-immigrant visa, and each year the US limits the number of H1B visas available.  For 2016, the number of non-exempt H1B visas awarded is 65,000, and that limit has now been met.

This can be discouraging for applicants who filed on time and met all of the H1B visa requirements, but each year there are more applicants than available visas.  The use of a lottery system for ‘approvable’ applications means that even qualified foreign nationals with a job offer could be denied the visa.  So, if you missed the cap, what are your options now?

Are You Eligible For An Exemption?

There are certain categories of petitions for an H1B that are exempt from the cap, and it may be worthwhile to evaluate your eligibility.  Even if your original petition was for a non-exempt job, you can still look for a position that is exempt from this year’s cap.

Exempt categories include applicants who:

  • Have a master’s degree or higher from a US institution (first 20,000 petitions are exempt from the cap)
  • Are employed at an institution of higher education, or its non-profit affiliates
  • Are employed at a non-profit or government research organization
  • Have an employer that supports or promotes a cap-exempt institution
  • Were granted an H1B visa in the past 6 years (you met the cap previously and don’t have to do it again)
  • Are applying from abroad to reclaim any remaining portion of a previous H1B, up to the 6 year limitation
  • Are seeking a valid extension on the normal 6 year limitation
  • Are citizens of Singapore and Chile (6800 spots exempt), or Australia
  • Are applying for an H1B transfer from one employer to another

As you might expect there are many variables in establishing that your job is H1B visa cap-exempt, and in many cases you will want professional assistance.  We will explore some of these exemptions in depth in future posts.

What If Your Job Is Not Cap-Exempt?

If the job that you listed on your H1B visa application is not cap-exempt, you still have an option available to you.  That is to find a job with a cap-exempt employer, as those listed above, and submit a new cap-exempt petition.  Cap-exempt petitions are not subject to the normal cap deadlines, so this can be done after the cap lottery results are known.

Of course, you have to find and apply for the job, get hired and have the employer submit the petition.  All other H1B visa requirements will still apply, such as the job relating to your degree and area of study.

Some applicants may think that if they secure a cap-exempt H1B they can then transfer to a job subject to the cap, but that would place them back in the lottery and normal deadlines.  If you have questions about cap-exempt jobs and application requirements please contact us and we can share with you the options.

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  • April 12th, 2016
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