After the Cap

For an alien worker expecting to work in the U.S. under an H-1B, there is little more frustrating than receiving a job offer from a U.S. employer after the cap has already been exhausted. As a legal services provider, we sympathize with alien workers who experience hardship because of this. The following strategies are general suggestions for coping with this situation, although individual cases may require different approaches:

  1. The advanced-degree exemption, or master’s cap, which sets aside an additional 20,000 H-1B visas for aliens with at least a master’s degree from a U.S. university, tends to run out more slowly. Note, however, that this is not always the case; for example, while more than 14,000 of these visas were unused by the end of May 2006, all of these visas were exhausted within five business days of the start of H-1B filing in 2017. Over the past several years, more and more qualified aliens are turning to this pool. Accordingly, it is similarly urgent for qualifying aliens and their employers to file their petitions for the master’s cap as soon as USCIS begins accepting H-1B applications. Further, aliens and employers alike should be aware that foreign workers do not necessarily have to have obtained a master’s degree when their petitions are filed. As long as they’ve completed their graduate degree prior to starting H-1B employment, aliens are eligible for these advanced-degree H-1Bs.

  2. Optional Practical Training (OPT) is another viable option if an alien holds a valid F-1 visa. OPT allows a student to work in her field of study for a period of twelve months, followed by a two-month grace period during which she is permitted to remain in the U.S. legally. Thus, assuming an alien’s OPT starts in August 2017, then she is able to work until August 2018, and the subsequent two-month grace period would allow her to bridge the gap until October 2018, by which point her H-1B petition will be, hopefully, approved.

  3. A third potential strategy for aliens whose H-1B petitions were not selected or approved is to change from OPT status to status under an Employment Authorization Document (EAD). Applications for permanent residency are not based on H-1B status. Some green card applications, such as EB-1A and National Interest Waivers (NIW), do not require an employer’s sponsorship. And so if an alien’s Form I-140 petition is approved on time and visa numbers are available to him, then the alien can submit a Form I-485 petition along with an EAD application. The processing timeline for an EAD is comparatively faster, making it possible to obtain a valid EAD by the time one’s OPT expires.

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles


Updated 05/08/2017