Hiring H-1B Employee Previously Counted towards ‘Cap’

As in previous years, all the new H-1B visas for the Fiscal Year (FY) 2015 were allocated on the first day leaving employers without any options but to wait for April 1st 2015 to file a new H-1B towards FY 2016. 

One of the options that many U.S. employers are exploring these days is to find employees who were previously counted towards the numerical cap in the past six years and either have not entered the U.S. in H-1B status or have not utilized their full six years of authorized period of stay in H-1B status. 

We would like to take this opportunity to remind our readers that in order to be eligible to file an H-1B without being counted towards a fresh cap, it is important the H-1B previously filed on behalf of the beneficiary has not been revoked by his/her H-1B employer prior to the beneficiary’s change of status to H-1B or in case of consular process, before the beneficiary’s application for a visa/admission.  Therefore, if the petition is revoked after the beginning of the fiscal year (Oct 1) or after he/she has been granted an H-1B visa/admission, the beneficiary will be counted under the cap.

Like many immigration issues, the H-1B cap rule may appear relatively simple but over time, can lead to pitfalls and wasted resources, hence we encourage potential H-1B petitioners and beneficiaries to consult with a knowledgeable immigration attorney to help them develop strategies that may be best for their situation.