"Cap" Exempt H-1B's

Under AC21 and other legislation passed by Congress, there are certain types of employers and foreign national workers that are "exempt" from the H-1B cap. Cap exempt case can be filed at any time and are not subject to the April 1 crunch and lottery procedure.

• H-1B beneficiaries, who had worked as H-1B employees within the past six years were already counted against the H-1B quota
• However, if you have been out of the U.S. for more than one year, you will be subject to the quota cap again.

• H-1B beneficiaries sponsored by institutions of higher education or a related or affiliated nonprofit entities, or a nonprofit research organizations or governmental research organizations are exempt from H-1B Cap
• However, if a foreign national transfers employers from a non-profit organization to a private sector, the employee will be subject to the cap unless he/she was previously counted against the cap in the past 6 years.

• H-1B physicians who have received a J-1 Conrad waiver of the 2-year home residency requirement based on work in a health professional shortage area are also exempt from H-1B cap.

• If a "material change" has occurred in the terms and conditions of the employment of the H-1B beneficiaries, the employer is required to file an "amended" petition. This type of petition is not subject to the H-1B cap.

• If the H-1B beneficiary's current status is about to expire and needs an extension for additional time, typically for another 3 years, the employer must file an H-1B "extension". Like amended petitions, extension petitions are not subject to the H-1B cap.

• If the H-1B worker who is presently subject to the cap or has been subject to the cap in the past 6 years wants to work for another employer as well as for the current employer the worker is not subject to the cap.
• The new Employer files a "concurrent" H-1B petition on his or her behalf.

• If the H-1B employer wants to change employers, AC 21 portability rule allows the beneficiary to transfer his/her employment to the new employer prior to the approval of the new Petition by USCIS. This "porting" is not subject to the cap if the foreign national has been subject to the quota in the past six year.
• The new employer must file the Petition while the individuals H-1B status is valid.