Is My Potential H1B Employee Cap-Exempt?

As our law firm begins to accept and work on new H1B petitions, many of which are filed subject to the 65,000 cap, it is important to remember that potential employees with petitions filed within the last 6 years could have their H1Bs refiled cap-exempt. Taking advantage of this exemption could provide H1B-dependent employers with unparalleled benefits when continuing to employee or when hiring a foreign national.

Background
The INA mentions that the period of authorized admission for a nonimmigrant entered through the H1B visa may not exceed 6 years. INA Section 214(g)(4). Additionally, "any alien who has already been counted, within the 6 years" before the approval of the new petition will not be counted again toward the 65,000 unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.  INA Section 214(g)(7).

Moreover, 8 CFR Section 214.2(h)(13) specifies that a new H1B petition may not be approved unless "the alien has resided and been physically present outside the  United States...for the immediate prior year." We note that the same section also mentions that brief trips for business or pleasure would not count when considering whether the foreign national has been outside the U.S. for one year. What are considered to be "brief trips" would be considered on a case-by-case basis and is beyond the scope of this blog. You should consult an immigration attorney if you believe this may be an issue.

Application

Our understanding is through analyzing the USCIS memorandum on the "Procedures for Calculating Maximum Period of Stay Regarding the Limitations on Admission for H-1B and L-1 Nonimmigrants" (The USCIS Memo). In order to help employers understand this very confusing but advantageous subject, we have created a flowchart attached to this blog. Following this chart, employers can understand which options are available for the particular H1B candidate.

To understand your options, we begin with the basic question: Has your potential employee ever been approved  for H1B subject to the cap?

If your answer is no: Then the only option would be to apply for a new H1B and count against the cap, unless you are a cap-exempt employer, which will be the topic of a later blog on H1B.

If your answer is yes: Then the next level of analysis becomes whether he was approved more or less than 6 years ago. If the prior H1B for the foreign national was approved more than 6 years ago, then he must apply subject to the cap. However, in order for him to be eligible to apply, he must also have resided outside the U.S. for the immediate year prior to his petition.

Alternatively, if the prior H1B was approved less than 6 years ago, then he would be able to apply cap-exempt regardless of whether he has never entered the US or has entered the US and used time on his H1B. If he never entered the U.S., then he would be eligible to apply cap-exempt and be eligible for the full 6 years, subject to the discretion of the adjudicator.

However, if he has entered the U.S., made himself available to work for an employer within the last 6 years, and left more than a year ago, then he would have more choices. In that event, he would be able to either (1) apply cap-exempt and recapture the rest of the unused time OR (2) apply for a new H1B subject to the cap. If you choose to apply for a new H1B, then he would be able to work longer, if approved. Of course, if you are a cap-exempt employer, you should always choose the latter, as a new H1B would then be granted for the full 6 years.

If he left the U.S. less than a year ago, however, then the only option would be to apply cap-exempt and to recapture the unused time.

Recapturing Time
If you and the foreign national wish to use and is eligible for the recapturing time option, you must submit documentation to demonstrate that he was outside the U.S. for the period of time that is requested to be recaptured. The USCIS Memo suggests that the "burden of proof rests with the alien to establish his or her eligibility for any recapture benefits." Thus, the foreign national must prove that he was outside the U.S. for the requested time. The type of documentation required may depend on his particular situation.

Contact our law office to talk about your options and to see whether your beneficiary's documents are sufficient.