H-1B Visas: 8 Loopholes in the H-1B Cap

The U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2014 that that the H-1B cap for fiscal year (FY) 2015 had been reached. In fact, USCIS received far more applications than the limit of 65,000 bachelor degree H-1B visas and the 20,000 H-1B petitions filed under the advanced degree (master’s degree or higher) cap exemption.

The agency plans to conduct a random, computer-generated lottery that will select which petitions will be processed, and which will be rejected. The selection process will start with the advanced degree exemption.

Not every H-1B petition is subject to the cap. The following circumstances qualify as exemptions to the cap, allowing employers to file H-1B petitions at any time:

• H-1B extension – the employer is seeking an extension of H-1B employment for a current employee.
• Change of employer – the employer is hiring an H-1B employee who is working with another employer, provided the employee’s H-1B was counted previously against the cap.
• Amendment – the employer has changed the terms of employment, e.g. different position or location, for the H-1B employee.
• Concurrent employment – the H-1B employee will work for a second employer while continuing to work for his or her current employer.
• J-1 Waiver Physician – the H-1B employee is a J-1 physician who has received a waiver of the two-year home residency requirement (“J-1 waiver”). The J-1 waiver must have been sponsored by a federal or state government agency. Hardship and persecution waivers do not qualify for this exemption. This exemption follows the physician to any new employment.
• Cap-exempt employment – the H-1B employee will work for a qualifying cap-exempt employer or work at a qualifying cap-exempt facility. If the employee changes to a cap-subject job, the petition must compete for a new H-1B visa in the cap.
• Free Trade Agreement exemption – the employee is a citizen of Chile or Singapore and qualifies for H-1B1 status. Each fiscal year, 6,800 visas from the 65,000 H-1B cap are set aside for citizens of Chile and Singapore (1400 for Chile, 5400 for Singapore) to obtain H-1B1 visas. Rarely is this separate visa cap met.
• Previously counted H-1B – the H-1B employee previously had H-1B approval and has not used the entire six year employment period available. A potential employee who holds another visa status in the U.S. or is currently residing outside the U.S. can qualify for this exemption.

Considering the many “loopholes” in the H-1B cap system, employers should carefully review the immigration history of potential and current H-1B employees to determine if any of these exemptions apply. For specific solutions, employers should consult with an immigration attorney who has extensive experience working with employment immigration.

For immigration questions about hiring H-1B employees, you are invited to contact Ann Massey Badmus at abadmus@cowlesthompson.com, 214-393-4917.

The information provided in this article is intended to help you understand basic issues involved in the immigration process for H-1B employees, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.