H-1B Visa Annual Cap, H4 Visa Application, Cap-Gap Relief

There is an annual numerical limit or cap on the number of H-1B visas issued. Currently, only 65,000 foreign nationals per year can be issued visas or given status in H-1B classification, with additional 20,000 H-1B's set aside each year for holders of U.S. Masters Degrees or higher. These H-1B caps can be reached quickly each year, and this can result in a great deal of hardship to both employers and H-1B candidates.

The H-1B cap does not apply to H-1B extensions of status with the same company, a petition for a second H-1B, and transfers from one H-1B employer to another H-1B employer. However, the cap does apply to an H-1B transfer applicant who was previously working in a cap exempt H-1B position, such for a government research organization, and now wishes to transfer to a for-profit cap-subject organization.

Also, the Bureau of Citizenship and Immigration Services (USCIS) will not count someone towards the H-1B cap, if they have been in H-1B status within the previous six-year time period, unless the individual is applying for a new six-year period of stay at the time the petition is filed. Also, any H-1B petition revoked for fraud or willful misrepresentation shall be added back to the cap in the year the petition was revoked, regardless of when the visa was actually issued.

Each of these fees is in addition to the base processing fee to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.

2) American Competitiveness and Workforce Improvement Act (ACWIA) fee for certain H-1B Petitions: Before October 1, 2003, employers who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998. The fee is used for U.S. citizens, lawful permanent residents, and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor.

The H-1B provisions of the Omnibus Appropriations Act raises the fee to $1,500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions are exempt from the $1,500 or $750 fee.

3) Fraud Prevention and Detection fee for H-1B and L-1Petitions: A petitioner seeking initial approval of H-1B or L-1 nonimmigrant status for a beneficiary, or seeking approval to employ an H-1B or L-1 nonimmigrant currently working for another petitioner, must submit a $500 Fraud Prevention and Detection fee. Other than petitions to amend or extend stay filed by an existing H-1B employer, there are no exemptions from the $500 fee.

4) Additional fee H-1B and L-1 petitions filed by companies that meet certain requirements: A law has passed in U.S. Comgress to increase the an already high filing fee for H-1B visa and L-1 visa petitions filed by companies that meet certain requirements, the subject employers must pay the increased fee of $4,000 for all new H-1B employees (increased from $2,000), and $4,500 for all new L-1A and L-1B employees (increased from $2,250).

Only companies with fifty (50) employees or more in the U.S., at least 50 percent of whom are in H-1B status or L-1 status, are subject to the fee of $4,000 for H-1B, or $4,500 for L-1. If a company has fewer than 50 employees in the U.S., or if company's combined total of H-1B and L-1 workers is less than 50 percent of its total U.S. workforce, this fee does not apply.

The following petitioners must submit the additional fees with an H-1B or L-1 petition filed: (a) Initially to grant status to a nonimmigrant status of H-1B or L-1, or (b) To obtain authorization for a nonimmigrant in such status to change employers.

This fee is in addition to the a) Base Processing Fee, b) Fraud Prevention and Detection Fee, c) American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as d) the premium processing fee, if applicable.

Subject employers do not need to include the $4,000 or $4,500 fee each time an H-1B visa or L-1 visa petition is filed to USCIS. An employer generally is required to pay the fee only one time for such employee. It is important for employers to properly assess filing fee requirements. H-1B or L-1 petitions filed without the correct filing fees may be rejected directly.

H-4 visas are issued to the H-1 holder's spouse and children under twenty-one years of age. Holders of H-4 visas are considered to be dependents of H-1B visa holders. As H-4 status holders, spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1 holder's authorized stay.

The spouse or dependent child of an H-1B worker may accompany or follow to join the principle H-1B visa holder. These H-4 visa holders may attend school, but cannot work. The H-4 visa holder may remain for as long as his or her spouse is on H-1B. The duration of their stay is limited to and equal to that of the H-1B visa holder.

To obtain an H-4 visa to enter the U.S. with their H-1B beneficiary spouse, both husband and wife should visit the U.S. Consulate located in their home country, and apply for both the H-1B visa and the H-4 visa simultaneously. All required documentation should be brought to the U.S. Consulate at that time.

USCIS has issued a memorandum setting forth the procedures for calculating the maximum period of stay allowed for H-1B nonimmigrants. It addressed issues pertaining to the recapture of time spent abroad, and it does not alter the H-1B extensions beyond the six-year limitation that are commonly referred to as seventh-year extensions. USCIS now allows for persons in H-1B to recapture each day that they spend abroad during the standard H-1B duration.

Under the change in USCIS policy allowing for recapture of any time spent abroad, if a person on H-1B spends two weeks outside of the U.S. on vacation each year during the six-year H-1B period, that person can request, and should receive, twelve additional weeks of H-1B time. The earlier policy of only allowing recapture for meaningful interruptions is no longer applicable. This is a significant change and will be beneficial to many people.

The reason for this is that the same terminology interpreted by the USCIS for H-1Bs also appears in the L-1 regulations. Thus, the logic is the same for both categories. Also, dependent family members, who would hold H-4 status, will be able to extend their statuses for the additional time granted to the primary applicant. There was no
mention of the need for the H-4 to also travel abroad. Thus, the H-4 could remain in the U.S. while the primary is abroad on a business trip, yet be able to extend his or her status with the H-1B primary spouse.

A person claiming recapture needs to be prepared to document the time spent abroad. The appropriate evidence includes passport stamps, I-94s, and/or plane tickets. Consequently, one should keep such evidence in a safe place, as it may be needed many years hence.

5. What Is the Grace Period for an H-1B Work Visa? and Why You Must Leaving the U.S. When Your H-1B Status Expires

If you are a foreign national working in the U.S. with an H-1B visa, you have probably heard the rumor that there is a ten-day "grace period" for people with H-1B visas, and that this grace period gives H-1B visa holders ten days in which to find another job if they leave their H-1B employer. However, this is NOT correct. There is NO ten-day grace period for H-1B visa holders. As soon as you cease working with your H-1B employer, you immediately fall out of status and you are no longer maintaining legal status in the United States.

It is important to leave the U.S. when your H-1B status expires. Your status can expire in either (or both) of two ways. First, your status can expire upon the arrival of the date stamped on your I-94 card that the immigration officer gave you when you entered the U.S. in H-1B status. If you changed status to H-1B status while already in the U.S., your new I-94 card is located at the bottom of your H-1B approval notice. You should put this I-94 card into your passport immediately. Or, your status is deemed to expire when you cease to maintain you status. In the case of an H-1B visa holder, your status will expire the day you stop working for your H-1B employer – regardless of what date is stamped on your I-94 card.

If you fail to leave the U.S. after your status expires, you are considered to have "overstayed" your period of authorized stay. That means you do not have any legal status in the U.S. and you begin to accrue "unlawful presence."

Accruing unlawful presence leads to serious consequences. If you accrue more than 180 days but less than one year of unlawful presence, when you next leave the U.S. you will not be allowed to reenter the country for a period of three years. Even more seriously, if you accrue a year or more of unlawful presence, when you next leave the U.S. you will be barred from reentering the country for a period of ten years.

Additionally, it may be possible for you to extend your H-1B status, even after it has expired. Most of the time, in order to extend your status, an H-1B employer must be able to show USCIS that you are currently in status. However, USCIS does have the discretion to approve an extension of status even if you are not in status. USCIS will typically grant the extension only if you have been out of status for only a short period of time, such as a couple of days. Again, even if you have been out of status for only a few days, USCIS can still deny the extension of status petition. Therefore, you should not rely on USCIS' discretion except as a very last resort.

USCIS has regulation that addressed matters related to graduating F-1 students transitioning into H-1B employment. This regulation provided assistance, known as "cap gap" relief, for students facing status and employment eligibility gaps between the expiration of their 12-month OPT period and the start of H-1B employment. H1B employment eligibility for most graduating foreign students is dependent upon availability of H-1B cap numbers.

Thus, there is often a gap between the expiration of a student's OPT and the earliest allowed start date (usually October 1st) of an H1B petition filed by the employer. Without cap-gap relief, many of these students had no way to remain in the U.S. and work for many months. The regulation addressed this problem, allowing more students to transition smoothly from F-1 to H-1B status.

The Cap-Gap occurs because the earliest date that an U.S. employer can file an H-1B status petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the change of status request, the earliest date that the student may start the approved H-1B employment is October 1.

The USCIS regulations allow H-1 international students with approved H-1B petitions to remain in F-1 status during the cap-gap period, which provides a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status, that might otherwise occur if F-1 status is not extended for qualifying students. H-1B petitions that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

The regulation also provided for a possible extension of OPT status, for an additional 17-month period (total of 29 months) for those graduates with degrees within the specified list of STEM degrees. Along with the grant of this significant privilege came new requirements for maintenance of employment during the OPT period in order to maintain status.

7. The 24-Month Optional Practical Training (OPT) and STEM Degree

Certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their post-completion optional practical training (OPT). To qualify for the 24-month extension, you need to meet 2 conditions:

1) you must ave been granted OPT, and currently be in a valid period of OPT;

2) have earned a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education recognized accrediting agency, and is certified by the Student and Exchange Visitor Program (SEVP) at the time you submit your STEM OPT extension application.

If you are an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree, you may be eligible to use a previous STEM degree from a U.S. institution of higher education to apply for a STEM OPT extension. You must have received both degrees from currently accredited and SEVP-certified institutions, and cannot have already received a STEM OPT extension based on this previous degree. The practical training opportunity also must be directly related to the previously obtained STEM degree.

For example, if you are currently participating in OPT based on a master’s degree in business administration but you previously received a bachelor’s degree in mathematics, you may be able to apply for a STEM OPT extension based on your bachelor’s degree as long as it is from an accredited U.S. college or university and the OPT employment opportunity is directly related to your bachelor’s degree in mathematics.

8. The H-1B Registration Changes For Lottery Selection Process

USCIS uses a lottery when companies file more H-1B applications or registrations than the annual limit of 85,000, which is 65,000 plus a 20,000 exemption for advanced degree holders from U.S. universities. According to USCIS, registrations increased largely due to multiple registrations submitted for the same individuals. Due to the low annual H-1B limit, USCIS would have rejected over 75% of H-1B registrations, even if beneficiaries with multiple registrations were excluded from the lottery.

Thus, USCIS has proposesd a solution, selecting H-1B registrations by unique beneficiaries. Under the proposed selection process, registrants would continue to submit registrations on behalf of beneficiaries and beneficiaries would continue to be able to have more than one registration submitted on their behalf. But the selection would be based on each unique beneficiary identified in the registration pool, rather than each registration.

Each unique beneficiary would be entered in the selection process once, regardless of how many registrations were submitted on their behalf. If a beneficiary were selected, each registrant that submitted a registration on that beneficiary’s behalf would be notified of selection, and would be eligible to file a petition on that beneficiary’s behalf.

If multiple unrelated companies submitted registrations for a beneficiary and the beneficiary were selected, then the beneficiary could have greater bargaining power or flexibility to determine which company or companies could submit an H-1B petition for the beneficiary, because all of the companies that submitted a registration for that unique beneficiary would be notified that their registration was selected, and they are eligible to file a petition on behalf of that beneficiary.

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