H1B CAP &  PORTABILITY
(The Ability to Move Between Employers)

Familiar clients know that this cap was reached in past years on April 1, which is the first day filings can be submitted (six months prior to the beginning of the fiscal year).  However, in 2009 (FY2010), the cap was not reached until December.  In 2010 (FY2011), the cap has not yet been reached. 

Petitions received on the date the cap is reached are subjected to a random selection process for the cases to be adjudicated.  Fees are returned to those not selected.

• Employees of institutions of higher education or a related or affiliated nonprofit entity
• Employees of nonprofit research organizations and government research organizations, and physicians who ever obtained a waiver of the 2 year J-1 home residency requirement for purposes of clinical care to an underserved area
• H1B status holders seeking sequential employment, concurrent employment, an extension of stay, or an amended petition
• H1B status holders coming from cap-exempt employment after having been subject to the to the cap during the same 6- year block of eligibility

• There is a cap exemption for the first 20,000 petitions received from graduates of U.S. institutions awarded a master's or higher degree in a field related to the specialty occupation.

• Avoid the need for a petition as a prerequisite for a visa application, are not excluded by the cap, have less obligations under a "labor attestation" version of the labor condition application and avoid the fraud fee.  However, unless they obtain an H-1B proper, they lack the portability afford to H-1B advantage.

Initial petitions may be approved for up to 3 years with extensions also up to 3 years.  Neither the initial grant or the extension may be longer than the validity of the labor condition application.

The general rule is that the H (as well as the L) status cannot exceed six years without an intervening residence abroad of one continuous year.  Certain instances allow for an extension beyond the sixth year.  (See below for additional information on such methods.)

Also, a new six-year period may begin after the alien worker has resided outside of the United States for a year (365 days) or more and a new petition is approved for that worker. 

An alien worker can recoup any unused time from the six years allocated to him or her on a previously issued H-1B visa.  This holds true even when the H-1B has been outside of the U.S. for more than one year.

Recapturing Time

Days spent abroad do not accrue and may be recaptured to extend the H-1B status.  It is the H-1B status holder who has to prove the days spent abroad.

An alien who hold or have held H-1B status and who has been lawfully admitted without subsequent unlawful employment may begin work for a new employer at the time of filing the petition rather than waiting for USCIS approval. 

Consultation with an attorney is necessary before using portability aggressively.  Employers and aliens should be fully advised about potential employer sanctions, accrual of unlawful presence invoking bars on reentry, and findings of misrepresentation. 

KLF may advise someone who took an aggressive position to, after approval of a new petition, depart and return.  This arises where concern exists about the impact from working before approval, which can be cured by such a post-approval trip.  Consultation is required to deal with Dept. of State questions about past violations.