The cap poses two issues. First, if the number of petitions exceeds the cap, then the immigration service will conduct a random lottery. See http://yi2min2.blogspot.com/2014/12/dealing-with-h-1b-cap.html for details. Therefore, if your employer has filed a petition, and this petition is part of the lottery, you risk not being selected. Second, regardless of whether or not a lottery will be held, you might have timing issues in maintaining status until October 1, 2015, the time when new approvals become available. For example, your OPT grace period might end prior to April 1, 2015, leaving you a gap between that time and October 1. In such a case, you would need to find another lawful status so that you could remain in the US, or else have to leave the US. See http://yi2min2.blogspot.com/2012/12/your-opt-ending-date-and-its-effect-on.html for details on how an OPT ending date affects an H-1B cap-subject petition.On the other hand, some petitions for H-1B status will be exempt from the cap. If your petition falls into one of the categories below, and is otherwise approvable, you would not need to worry about any lottery or about any arbitrary filing or beginning-of-work dates.
· The petitioner (that is, would-be employer) is an institution of higher education, or a nonprofit entity having a proper affiliation with such an institution
For example, a faculty person at a university probably would be H-1B eligible and also cap-exempt. So would, possibly, a researcher at a hospital at which medical school students from a university would study or do practical work
· The petitioner is either a federal or a nonprofit research organizationAn example of such an organization is the National Institutes of Health (NIH).
· The beneficiary (that is, the would-be employee) previously held cap-subject H-1B status in the pastThe Bible says that “since Christ was raised from the dead, he cannot die again…” Romans 6:9. That is, because Christ died once, he therefore cannot die again.
In the same way, if a person previously was counted against the cap recently enough, that person is not required to be counted again. For example, suppose a person graduates with an MBA, then receives cap-subject H-1B status for the first time to work as an accountant. After a year, the person returns for a second master’s degree, changes back to F-1 status, and this degree requires a year. When this person again seeks H-1B status, this person need not be concerned with the cap, because of the previous cap-subject H-1B time.Please note that simple nonprofit status of a petitioner, by itself, is INSUFFICIENT to qualify that petitioner as cap-exempt. In the same way, a non-government organization (NGO) is not automatically exempt from the cap.
The immigration statute provides another exemption, but only for the first 20,000 eligible petitions. This exemption is for people who hold a master’s degree or higher from a U.S. institution of higher education. This U.S. master’s cap exemption is already full, however, so that even if you held such a degree, the earliest you could work lawfully in cap-subject status, if at all, would be October 1, 2015.If you are claiming an exemption based on the type of petitioner, be sure to pay attention to the address for filing. These petitions traditionally have gone to the California Service Center. In addition, please be aware that Federal Express, if not other courier services, will deliver only to a “real” street address, not to a post office box address.
I hope this information is helpful to you.The above blog post does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, Attorney at Law
610-296-3947, cell 215-983-3723
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