1.                  These types of cases are subject to the H-1Bcap:

  • International students working on an EAD cardunder an OPT or CPT program after having attendeda U.S. school;
  • International employees working on a TN may needan H-1B filed for them in order for them to pursue a permanent residency (greencard) case;
  • Prospective international employees in anothervisa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exemptorganization; and
  • Prospective international employees currentlyliving abroad.

2.                  These types of cases that are not subject toH-1B cap:

  • H-1B amendments/extensions/transfers
  • When the employee has been in H-1B status forless than 6 years
  • Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore,Australia, Canada, Mexico
  • MDs who have received a J-waiver of their 2years foreign residency requirement.
  • H-1Bs filed by institution of higher education (or itsaffiliated or related nonprofit entities), a nonprofit research organization,or a government research organization.

3.                  Employees with aU.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs a Masters Cap H-1Blottery to determine 20,000 lottery winners. All H-1B applicants who lose this lottery are then placed in the general65,000 H-1B lottery.
4.                  Cap-Gap Rule: USCISautomatically extends the H-1B status of OPT F-1 students who win the H-1Blottery.  The OPT F-1 status is extendedthrough October 1, at which point the status converts to H-1B by operation oflaw.
5.                  An Employeedoes not have to hold H-1B status for the employer to initiate green cardprocess. This can be started while the employee is on F-1 or most otherstatuses.
6.                We do not recommend that F-1 studentstravel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to beabandoned.  If the F-1 student doestravel, the employee is required to apply for an H-1B visa abroad beforere-entering the US.

7.                  The employee’s proposed worksite may not change untilthe H-1B CAP petition is approved.  Ifthe worksite changes the USCIS is inclined to deny the case.  If possible the H-1B cap petition should beupgraded via Premium Processing.  Uponapproval of the H-1B, the employer can file an H-1B amendment.