Make Sure About Your H-1B “Trapeze”

You probably have seen a flying trapeze act if you have ever been to a circus. Performers swing from a trapeze (that is, a swing) high above the floor. In particular, they will use multiple trapezes to move from one platform to another. To do so, of course, they must coordinate the trapeze they are on with the one they intend to change to. That is, at the time they let go of the first trapeze, they must make sure that the next one is right by them so they can grab it. Otherwise, they will fall.

This same situation pertains to obtaining more than three years of H-1B time. A person can have as many as six years of H-1B time, but any such petition for H1B status is limited to a maximum of THREE years. Therefore, a person who wishes more than three years must have an employer file a second “extension” petition later, as the time on the first petition is drawing to an end.

For purposes of the following discussion, assume that you have never had H-1B status prior to what I describe below.

Most of the time, the “second trapeze” of the H-1B extension already is waiting for you. For example, if your first status was with a cap-subject employer, then you would have been counted under the cap for that petition, so you would not be counted a second time. This cap-counted situation applies regardless of whether you remained with your same employer or whether you sought a new one. Furthermore, if your second employer itself is cap-exempt, you similarly would not have a cap problem.

You will need to be careful, however, if your first H-1B status is with a cap-exempt employer. Yes, you would have avoided, at the time of filing, many of the troubles your friends may have faced with their cap-subject petitions. They, for example, probably had to worry about whether their petitions were prepared and filed in time, whether they needed to face a lottery and whether or not they were selected in the lottery. However, if they got through those things, they generally would be “home free” with respect to the extension petition, because they have dealt with and conquered the cap problem already. They are like the person who had chicken pox as a child, and so need not worry about it later.

You, on the other hand, did not face these problems the first time, but you might face them the second time, i.e. with the extension. That is, you are like the one who still risks chicken pox through not having it as a child. Therefore, to reduce risk and the chances of problems, you might want to assess your situation and talk with your employer. Having assurance from your employer about continued employment would be helpful. Alternatively, having a second potential cap-exempt employer also would be helpful.

The WORST situation for you is to be caught off-guard near the end of your cap-exempt H-1B time, with no cap-exempt possibilities, and with the cap at that time already full. In this case, you will be leaving your current trapeze, but no second trapeze might be waiting for you. In this case, put another way, now you are facing your chicken pox.

This situation is occurring right now with a client who came to me recently. In 2012, before she knew me, she began H-1B status with a cap-exempt employer, and that status will end in the summer of 2014. The employer had made clear that it would offer only initial H-1B status, and no extension. However, the attorney who handled that petition apparently (and if so, then in my view, irresponsibly) never told her the implications of the summer ending date. As you probably know, the cap already is full for fiscal year 2014, that is, the year in which her initial H-1B is to expire. In fact, the cap filled up during the first five days of April 2013, the earliest time one could file to begin work October 1, 2013, that is, the first day of fiscal year 2014. At the present time, therefore, filing a cap-subject petition that would allow her to begin work in the summer of 2014 is impossible.

Be careful of this situation, if, like this client, your initial H-1B is at a cap-exempt employer. If you fail to find a cap-exempt status for your extension, you may even need to end your first H-1B time early, in order to have an October 1 start date at a cap-subject employer. In turn, in this case, an October 1 start date would require an April 1 filing date.  As you can see, careful planning and timing is critical. This process may be hard, but it might be the only way that you can begin your extension in time to avoid a cap problem.

You are welcome to contact me at 610-296-3947, 215-983-3723 or csun@calvinsun.com. The above information does not constitute legal advice and does not create an attorney-client relationship.