H1B Petition Exempt from the 65, 000 Cap

USCIS started to receive H1B petitions for FY 2007 from April 1 st . Due to the huge demand, the 65, 000 cap is estimated to be reached soon. For FY 2006, the H1B cap was reached in middle August 2005, and we anticipate it would be even earlier this year, maybe in June or July. The employers would better file H1B petitions for foreign employees as soon as possible in order to obtain a quota.

The applicants should note that not all H1B petitions are counted against the 65, 000 quota. The following H1B petitions are exempt from the numerical cap:

1. The extension of status.
2. Multi-employment. A foreign worker can work for different employers simultaneously with different H1B visas. Where an employer petitions for a foreign worker who has had a first H1B visa counted against the quota, the second petition is exempt from the cap.
3. If a foreign worker has changed his/her employer, and his/her former H1B was subject to the cap, the new petition is exempt.
4. Where the employer is a higher education institution or a relevant non-profit entity, or a non-profit research organization, or a governmental research organization, a petition is exempt whatever the job is.
5. Where the beneficiary is a physician who has received a J waiver under the Conrad 30 program, a petition is exempt.
6. Where the beneficiary has been counted against the quota during the past six years, and never been out of the US for more than one year during the past six years, a petition is exempt.

However, if the former H1B visa for a foreign worker was exempt from the cap and now he/she cannot meet one of the above qualifications, his/her new employer should file a new petition subject to the numerical cap of the year.

In addition, the applicants should remember that 6, 800 among the 65, 000 quotas are specified for Chile and Singapore workers. This makes the number of H1B petitions more limited.

(04/06/2006)

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