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H-1B Status: Cap-Subject vs. Cap-Exempt

November 28, 2022

The most-used type of visa status in the United States is the H-1B. To qualify, a foreign worker must have at least a bachelor degree (or U.S. equivalent) related to the field in which she will work, and be sponsored by a U.S. employer for a position that normally requires at least a four-year degree. H-1B status is employer-sponsored, and by law, all fees and costs related to the process must be paid by the employer. Employment-based immigration in the U.S. is employer, location and position-specific, meaning that if any of these change during the course of employment, the employer may need to file an amendment petition with the U.S. Citizenship and Immigration Service (USCIS). Employment does remain at will, therefore it can be terminated by the employee or employer at any time (USCIS must be notified). With some exceptions, H-1B status can be held for a total of six years, and is granted in three year increments.

Because H-1Bs are the most-used work visa, they are numerically limited each year. There are many more applicants annually than there are H-1Bs available. (This year, there were 483,927 entries for 85,000 available visas.) A random electronic lottery is conducted each March, and those selected can file an H-1B application with USCIS. If approved, H-1B employment begins October 1. If not selected, the foreign national must maintain valid immigration status to remain in the United States, or depart.

There are exceptions to this lottery process and numerical cap. These exceptions include:

  • Foreign nationals who already hold H-1B status and wish to change to a different employer are not part of the lottery. The new employer must file an H-1B petition with USCIS prior to the start of employment.
  • The prospective employer of a foreign national who has held H-1B status within the last six years can file an H-1B petition without entering the lottery.
  • Certain employers, including universities, government research institutions and teaching hospitals, are exempt from the H-1B cap.
  • An employee who is employed pursuant to H-1B status can have concurrent employment (usually part-time) with another employer. The second employer does not have to enter the lottery, but does need to file a concurrent H-1B petition with USCIS. (This arrangement requires that the foreign national maintain employment with the primary employer.)

If H-1B status (cap-subject or exempt) is not feasible, a foreign national may be eligible for other non-immigrant status, employment-authorized dependent status, or green card sponsorship.  When contemplating the hire of a foreign national in need of sponsorship, it is best to consult a U.S. immigration attorney early in the process to discuss the available immigration options.

About the author:

Kate M. McCarroll of Kerr RussellKate M. McCarroll has extensive experience in employment-related immigration law, including inbound/outbound immigration, Department of Labor/ Department of Homeland Security audits and I-9 compliance training. Kate has also handled matters involving asylum proceedings, family-based immigration, and criminal and inadmissibility issues.

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