If You Leave the States Do You Need to Go Thru H1b Cap Again

This post will explore a range of H-1B cap-exempt topics, including H-1B cap-exempt jobs, requirements, H-1B cap-exempt employers, minimum wage, H-1B cap-exempt employers, and more.

What Does H-1B Cap-Exempt Mean?

The regular H-1B visa cap dedicates 65,000 petitions to foreign workers with the required skills and qualifications. USCIS allots an boosted 20,000 petitions to individuals holding advanced degrees at a master's level or beyond. All the same, in some cases, you can file H-1B applications without going through the H-1B cap.

An exemption category is bachelor to U.S. employers that fall into one of the 3 exemption categories including:

• Higher education institution
• Non-turn a profit organization associated with a higher education establishment
• Not-turn a profit research arrangement  or government enquiry system
• A for-profit visitor seeking to rent an private for specialty occupation services to be provided to an approved not-profit

It'due south essential to recognize two overarching classifications of H-1B cap-exempt petitions. Those are petitions filed on behalf of cap-exempt candidates and those filed by cap-exempt employers.

For a higher education institution to authorize, it must see the USCIS mandated criteria. According to Section 101 (a) of the Higher Instruction Deed, an institution of higher didactics must:

• Be a public or non-profit institution
• Provide admission to students for a secondary didactics
• Have a license from a proper institution to provide educational activity beyond secondary schoolhouse
• Offer educational programs that honour bachelor's degrees or, at a minimum, 2-year education toward a caste

H-1B Cap-Exempt Not-Profit System Requirements

An H-1B cap-exempt non-profit must:

• Associate with a government organization or institution of higher education, it must:
• Exist a non-profit entity. (Non-profits that do non qualify: service, customs, policy, and art organizations)
• Associate with the institution through shared buying or board control

OR

• Human activity equally a branch, member of the subsidiary

USCIS defines a not-profit enquiry organization as ane that is "primarily engaged in basic or applied research." The about common not-for-profit institutions are colleges and universities affiliated with medical labs, research units, and hospitals.

A non-profit organisation or entity is tax-exempt and either of the following under the IRS: section 501(c)(3), (c)(4), or (c)(6) (see 26 U.S.C. 501(c)(3), (c)(four), or (c)(6)). In addition, the IRS should approve the not-profit as a tax-exempt organization for inquiry or educational services by the I.R.S.

Here's a example scenario to better illustrate the process:

Maria Gonzalez is trying to determine if she would exist eligible for cap exemption under H-1B. Company X (non-exempt employer) decides to file an H-1B on her behalf. Maria will exist responsible for onsite tasks at a university'due south medical research facility (Company Y), equally office of a joint agreement between Company X and Y.

Company Ten files the petition and submits proof that she will perform tasks similar to those an employee of the medical research facility would be in accord with their mission. Therefore Maria qualifies for the exemption fifty-fifty if Company X files the petition considering she would be performing tasks that fall under the exemption rules and follow Company Y's mission.

Identifying H-1B Cap-Exempt Employer

At that place are several resources to turn to when looking for an H-1B cap-exempt employer. You lot can await up employers and observe databases that lucifer yous to a suitable H-1B cap-exempt employer. Ofttimes finding an employer is the nigh time-consuming procedure. Please note that we do not have responsibility for the information'south validity in the above database link.

Fortunately, the H-1B applies to many occupations, including those in the sciences, applied science, concern administration, and more. Just because you hold a bachelor'due south degree does non guarantee that y'all're eligible for H-1B status. The chore itself has to require the caste and specialized skills you possess.

Who Are H-1B Cap-Exempt Candidates?

If you have previously been granted an H-1B cap exemption, then, co-ordinate to USCIS guidelines, yous will not be discipline to the H-1B cap. If, in the past, you were under H-1B status and are currently outside of the U.Due south., you might qualify to have an employer file a cap-exempt petition.

For instance, a former client of VisaNation Constabulary Group was employed in the U.S. from January 2003 to November 2006. The question he had was whether he would be eligible to file a new cap-exempt H-1B petition. He will indeed exist able to recapture the remaining 3 years on the H-1B without having to go through the lottery.

How Long Is a Cap-Exempt H-1B Valid?

An employer may file a cap-exempt H-1B petition for an employee if they previously held H-1B status in the U.S. and haven't used their half-dozen years of condition. The petition would exist for the remainder of the employee's allowed time in the U.Due south..

For example, an employee named Juan Valdez was in the U.S. on H-1B status from Feb 15, 2003, to Dec 1, 2006. Would he be able to file for a new H-1B cap-exempt petition? Yes, equally he has not used up his 6 years allowed on H-1B.

Another example is Siddhartha, an energy. He was in the U.Due south. on H-1B status from Nov 3, 2010, to December 5, 2016. He would likewise non be eligible considering he used up his six years, so he also would need to file in the adjacent H-1B lottery flavour.

It's worth noting that this half dozen-year time catamenia is only reset if you lot have been out of the U.S. for a minimum of one year; then you can file another H-1B under the quota.

Cap-Exempt Premium Processing

Once you identify an employer, you tin can expedite the processes past opting for premium processing. While times may vary slightly, premium processing typically takes xv days, and the service fee is $2,500. In contrast, standard processing can take anywhere from three to four months. Annotation that if USCIS selects your petition, your work start date is no earlier than October ane, 2022, just like any other applicant.

However, it is essential to note that the premium processing feature only expedites the speed at which the USCIS processes your I-129 petition. Information technology does not increase your chances of USCIS selecting your for the lottery, and information technology does not make you cap-exempt. If your employer files your petition with premium processing and USCIS doesn't choose it in the lottery, USCIS will refund all fees.

To learn more about a scenario like this or something like, y'all can consult a qualified clearing attorney specializing in cap-exempt H-1B situations.

H-1B Cap-Exempt Transfer

An H-1B transfer allows individuals with H-1B visa condition or previous H-1B visa status to transfer to a different employer.

As the H-1B visa holder, you do non have to receive permission from the sometime employer, though y'all should follow non-compete laws or whatever other contractual agreements with the employer. For the H-1B visa holder to change employers, the new employer must submit an H-1B Visa Transfer petition with the USCIS. The H-1B visa transfer qualifications are as follows:

• Must start employment within 30 days on the date indicated on the H-1B Transfer petition submitted to USCIS.
• You can begin working the twenty-four hours the employer receives the receipt from the USCIS.
• If y'all have incurred a gap in employment (ceased employment with an H-1B employer earlier transfer), it is advised to file premium processing.
• Y'all must also provide pay stubs as evidence of employment; nonetheless, it is possible to submit other documentation, i.e., a letter of the alphabet from the H-1B employer or a leave of absence letter.

While information technology varies in some cases, processing for an H-1B transfer typically takes 4 to 8 months after submitting the awarding to USCIS.

Is the H-1B Transfer Cap-Exempt?

Nether the H-1B Portability Rule, an H-1B visa holder can modify employers and kickoff working for the new employer the day USCIS receives the new employer'south H-1B transfer petition. However,  yous must file this new petition before the H-1B holder's visa expires.

According to the U.S. Department of Labor (DOL), "The portability provision is intended to preserve the legal status of an H-1B nonimmigrant who is already in the U.S.. Portability allows the employed H-1B worker to enter into employment with a new employer provided that:

• The new employer has filed a non-frivolous Petition for a Nonimmigrant Worker (Forms I-129/ I-129W) for the employment of the H-1B worker before the date of expiration of the worker's authorized menstruation of stay; and
• The new employer has submitted, along with its petition, an unexpired, approved Labor Status application (LCA) covering the aforementioned work that the individual is being hired to perform. The new employer may already hold an applicable LCA, or may take sought and received a new LCA in order to submit the petition."

If you lot already take a cap-exempt job and want to transfer to a different chore that also is cap-exempt, and so you tin file an H-1B transfer at whatsoever point and begin the new position after the H-1B transfer filing has been submitted to USCIS.

Another situation where the H-1B Portability Dominion would come into play is when a cap-discipline employee worked at a cap-exempt position and wanted to transfer to a new position. Then the new job would not be subject to the H-1B cap. Therefore the transfer could be filed whenever they wanted.

Equally you can see, the portability rule is quite complex. If you're seeking an H-1B transfer, speak with an H-1B lawyer at VisaNation Constabulary Grouping beginning. The last thing you want to do is submit transfer documents and have them denied because of errors on your part.

Transferring to or from an H-1B Cap-Exempt Employer

There are many instances of people wishing to transfer across employer exemption lines. While the advantages of entering the U.S. under a cap-exempt employer and transferring to a cap-subject employer seem promising, the reality is that this is not a loophole that people tin can exploit.

If your original sponsoring employer is cap-exempt and you lot wish to transfer to a cap-subject employer, so the latter employer will need to file an H-1B cap petition on your behalf. This is considering you will no longer be a cap-exempt candidate and accept not been counted against the H-1B cap.

The new employer will enter yous into the lottery based on the educational requirements of the position. If USCIS selects your petition, you can begin working for the cap-subject employer simultaneously. It's likewise essential to be conscious of any contracts or agreements y'all've signed with non-compete clauses to avoid repercussions.

How to Use for H-1B Cap-Exempt

Since cap-exempt visa applications can be filed at any bespeak during the agenda year, y'all don't demand to abide by specific application windows (no filing borderline or limit to petitions accustomed). After y'all've received a job offer and demonstrate that it's related to your educational proficiencies/degree, the employer needs to submit the H-1B cap-exempt petition on your behalf. Their application volition need to demonstrate that their job qualifies every bit cap-exempt and meets the same criteria. Later information technology's submitted, you'll demand to look to hear whether USCIS has approved it. In one case approved, you tin outset working for the employer at any point subsequently you take a valid visa.

Where Tin I Observe H-1B Cap-Exempt Employers?

A helpful site is MyVisaJobs with their H-1B Visa Sponsor Database. On the right-hand side, when searching through the database, you can select "cap-exempt." Y'all can also filter manufacture lawmaking (NAICS), work metropolis, visa rank, and job titles.

What is the H-1B Cap-Exempt Processing Time?

The H-1B cap-exempt processing time varies from case to example, and with the backlog of work at USCIS due to COVID-19, information technology'southward unclear the exact fourth dimension processing an H-1B case will take. The time it takes the DOL with the prevailing wage determination (if needed), the Fifty.C.A., and USCIS' processing can accept half-dozen months or more. You tin check USCIS processing times online.

1 of the advantages of the H-1b cap-exempt processing time to regular processing time is that the H-1b lottery and flavor doesn't restrict cap-exempt condition. For regular H-1B candidates, they have to spend most of February and March registering for the lottery, waiting to hear if they're selected, filing petitions if they are chosen, and, if approved, tin't work until October 1. H-1B cap-exempt jobs can hire foreign workers twelvemonth-round, and those workers can start at any point.

H-1B 2022-23 Cap-Exempt Fees

Since the cost to register an H-1B cap petition into the lottery is then low, we expect many entries into the lottery once more this year. Below is a chart detailing the H-1B fees including those for H-1B cap-exempt petitioners. To further illustrate what fees a company would be responsible for, here's an example of one tech company'south fees:

FundTech Visitor has 65 employees, and 70% of its employees are on H-1B visas. Should they choose premium processing, then they would pay the base fee of $460, the fraud fee of $500, Public Law fee of $4,000 (only applies to companies with over l employees and with over 1/ii of their workers on the H-1B visa), the training fee ($1,500 if it applies) and of course the $2,500 premium processing fee plus any additional chaser fees incurred.

Attorney Fees for H-1B 2022-23 Lottery

Notation that the lottery stages are tiered, and USCIS will select not all companies to file a consummate H-1B petition. See below the attorney fees charged past VisaNation Police force Group:

Tier ane: $550 for the initial registration process, which includes all preliminary instance analyses required to file the case

Tier ii: $1,900 to be due if the USCIS selects the case in the lottery for filing. This tier includes all grade/back up letter preparation plus example filing within the timeframe.

Tier 3: $500–$1,500 volition be the cost of a Request For Evidence (R.F.E.) response, should one subsequently be issued on the example.

Again, we need to reemphasize that all petitioners can complete the initial registration on their own accord. However, if you exercise the registration, USCIS volition deny your petition. After USCIS chooses your position in the lottery, your visitor may retain a VisaNation Law Grouping attorney to complete the process. The legal cost for them to handle that is $2,300, which includes responses on your behalf for any R.F.E.s requested past USCIS and any H-iv applications  (for dependent members of H-1B holders to come to the U.S. to join their relative). Individual R.F.Eastward.s can range between $500- $1600 depending on the case's circumstances.

Caveats for Multiple H-1B Registrations

If y'all decide to switch from an H-1B cap-exempt employer to 1 that is cap-subject, you may encounter a situation where a cap-bailiwick employer will try and submit multiple registrations for you. I of the significant restrictions to registering someone for an H-1B visa is that i employer cannot file various registrations on your behalf for the same task. If y'all qualify for multiple specialty occupations within the aforementioned employer, the USCIS might allow for multiple registrations. However, y'all tin probably await to receive a asking for testify, which could delay processing.

However, this has given rise to the practise of having related companies or business entities submit individual registrations on behalf of the aforementioned employee for the same chore. For example, Widget Inc. submits a registration for Aryan equally a software engineer. However, Widget Inc.'s parent company, A.B.C. Holdings, also submits a registration for Aryan for the aforementioned position. Technically, ii different employers submitted H-1B cap petitions, and then the rule can exist abused.

As of the 2018Thing of the Southward- Inc memorandum, the USCIS prohibits related entities from filing multiple petitions for the same person for the aforementioned specialty occupation. Suppose an audit determines that you have a petition for two employers that are parents, subsidiaries, or affiliates of 1 some other. In that instance, USCIS will revoke all of your petitions from the related employers. This will not affect petitions you lot may have with other unrelated employers.

Frequently Asked Questions

Can I qualify for an H-1B if I'm currently a J-1 Exchange Company?

Some J-i Commutation Visitors cannot get H-1B status until meeting the 2-year, home-country physical presence requirement or USCIS waives information technology. If this two-yr home land requirement doesn't apply to your state of affairs, you lot could be eligible for H-1B status. The best person who can determine this is a qualified immigration lawyer.

What is the H-1B cap-exempt minimum wage?

According to the DOL, the H-1B cap-exempt minimum wage is at to the lowest degree $60,000 in the calendar twelvemonth. If the employer is too paying for benefits, they can not exist counted towards the $sixty,000. If the employee works total-time, but for less than a twelvemonth, they must become a prorated share of the $60,000. For example, if they resign later working only three months, they volition still be due compensation of at least $15,000 for their work.

Is it possible to get an H-1B while out of the U.S.?

An employer tin apply for your H-1B visa even while you're living outside of the U.S.. After it'due south canonical, you lot need to get an H-1B visa stamp at the U.S. Consulate or Embassy in your home county, and then you can legally enter the U.S..

Would I be able to switch jobs after I go an H-1B visa?

H-1B transfers are possible. However, if you decide you want to change employers afterwards getting

H-1B condition, yous'll demand the new employer to file a petition on your behalf. The exception is if you lot're cap-exempt and moving to another cap-exempt employer. The most significant do good of the H-1B Portability rule is that it lets H-1B workers switch jobs without any run a risk of existence out of condition. What's more, an employer tin utilize the strange worker sooner than they usually would.

What is a specialty occupation?

A specialty occupation is divers equally i requiring "theoretical and applied awarding of a torso of specialized cognition and attainment of a available's degree or higher in the specific surface area of piece of work." Most commonly, these areas of specialty include the sciences, computer programming, and applied science. In 2020, the top H-1B visa occupations, according to myvisajobs.com, were software developers, computer analysts, operations research analysts, mechanical engineers, accountants and auditors, financial analysts and statisticians, and database administrators.

Can my wife/spouse and children get a dependent visa after I'thou approved on H-1B?

By constabulary, an H-1B holder's spouse and dependents, children under 21 years old, can use for H-4 status. In some instances, H-4 holders can also get the ability to work.

Does my employer have to pay me a minimum salary?

There is a minimum salary your employer must pay you as an H-1B worker. The DOL wage establishes and certifies the prevailing wage or the employer's proposed wage, depending on which one is higher. The employer also enters this wage on the L.C.A. form. Additionally, the employer must indicate that they are not displacing U.Due south. applicants by hiring a foreign worker.

Can I file the H-1B awarding myself if I don't have an employer yet?

Yous cannot file information technology. Only the U.Due south. employer can file on your behalf.

I'grand in the U.S. on an H-1B visa, and it just expired. What exercise I do?

There's a distinction between your visa stamp and your immigration condition in the U.S. Your immigration status dictates how long you can remain in the U.S. Your visa is but a travel document. If the visa found in your passport expires, that doesn't necessarily mean you lot have to leave the country right away because your legal condition depends on the I-94 expiration appointment. Every bit long as your I-94 is valid, then you can continue working in the U.S. for your H-1B sponsoring employee. If y'all are outside of the U.Southward. and the visa in your passport expires, then you should go to your U.S. consular to use for a new H-1B visa.

Can I extend my H-1B past the six-twelvemonth max?

There are certain situations where you could extend your visa past the 6-year limit, and those include if you filed your PERM Labor certification or I-140 at least 365 days prior, and then you could get an H-1B extension in one-twelvemonth increments. Likewise, if USCIS approved an I-140, you tin can obtain an extension in iii-yr increments assuming the priority date isn't current.

Tin I travel while I have an subpoena awaiting on my H-1B?

Yous can travel with it pending as long as at that place is a valid H-1B visa stamp and approved petition ready for your reentry. As a safeguard, take the subpoena receipt notice with you on your travels in example of whatsoever bug at reentry. If USCIS approves your subpoena while you're traveling, your employer can forwards it to you lot to utilise at the port of entry. Due to the current travel restrictions caused by the pandemic, information technology may be wise to consult with an H-1B lawyer before traveling without an approved H-1B subpoena.

Tin can I get premium processing subsequently filing the H-1B?

Yes, you can select premium processing while filing or, at a later time, upgrade to it afterwards getting the receipt notice. The 15 days guaranteed processing menstruation begins when USCIS receives Form I-907, Request for Premium Processing Service. Within that flow, USCIS will either approve, effect a denial find, notice of intent to deny, or a request for evidence for your case. If they request you lot send additional documents and evidence, a new xv calendar period will begin when they respond to the R.F.Eastward. The price for premium processing is $two,500.

Does premium processing make me cap-exempt?

No, it does not.

Can whatsoever non-profit organisation sponsor me?

To qualify as an H-1B cap-exempt not-turn a profit research or government research organization, the arrangement must run across the definition of a not-profit entity and its requirements:

• Continued or affiliated with an institution of college learning via shared buying or control past the same board.
• Completely operated by the higher learning establishment
• Connected to higher learning institutions through the non-profit being a member, subsidiary, branch, or cooperative.
• Must have entered into a contractual agreement with the establishment that establishes a relationship between them (the not-profit) and the institution for education or research.

Exercise cap-exempt employers pay the ACWIA fee for H-1B petitions?

No. Cap-field of study H-1B employers must pay the ACWIA education and training fee. Cap-exempt employers do not need to pay this fee. Moreover, co-ordinate to USCIS, the ACWIA fee is besides non required when:

• A petitioner files its second or subsequent request for an extension of stay with the same employer;
• A petitioner files an amended petition that doesn't contain any requests to extend the validity of the petition; or
• USCIS makes an error and you lot file a petition to correct the error. Withal, to exist considered exempt from the ACWIA fee, such petitions may not contain any requests to extend the validity unless the USCIS error involves the validity dates.

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Source: https://www.immi-usa.com/h1b-cap-exempt/

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