When is a person considered as counted against the H-1B cap?

The H-1B nonimmigrant classification is one of the most common ways for a foreign national to come to the United States to work on a temporary basis. There is a limit on the number of available H-1B visas that can be issued in each fiscal year. This numerical limitation is known as the H-1B cap and is set at 85,000 per fiscal year. In recent years, the number of persons applying for the H-1B cap has greatly exceeded the number of available H-1B visas. For example, more than 200,000 petitions were submitted in this year’s H-1B cap lottery.

Once someone is counted against the H-1B cap, they are permitted to remain in the U.S. in H-1B status for a total of 6 years. And so the question is, “What must occur so a person is counted against the H-1B cap?"

You are counted against the H-1B cap after you have been issued an H-1B visa stamp or spent at least one day in H-1B status. You are not required to use your 6 years of H-1B eligibility within a defined timeframe. The following examples demonstrate the application of the rule. 

  • Jill went through the H-1B cap lottery and received an H-1B approval in 2010. Jill was on H-1B for 6 months and then she left the U.S. Jill has been counted against the H-1B cap and is eligible to spend another 5.5 years in the U.S. in H-1B status. Jill is not required to use her 6 years of H-1B eligibility immediately. Jill could decide return to the U.S. on H-1B in 2020, 2025, 2030, etc. She would not be required to go through the H-1B lottery because she was already counted against the H-1B cap and she can use the remaining 5.5 years of her H-1B eligibility. 
  • Inc. filed an H-1B petition on behalf of its employee Jack. Jack was living outside the United States when ABC Inc. filed his H-1B petition. USCIS approved the H-1B petition; Jack subsequently attended an H-1B visa interview at a U.S. consulate and received an H-1B visa stamp. Jack has been counted against the H-1B cap. Jack ultimately decided to stay in his home country and never spent a single day in H-1B status. Years later, XYZ Corp. wants to hire Jack as an H-1B employee. Jack would not be required to go through the H-1B lottery because he was already counted against the H-1B cap. He still has 6 years of H-1B eligibility because he never spent a day on H-1B.

By: Zachary Taylor

Zachary Taylor advises employers and individuals on all aspects of U.S. immigration law, with a particular focus on nonimmigrant visas. His practice includes filing petitions and applications for immigration benefits, responding to requests for evidence issued by government agencies, and drafting motions and appeals.

Houston
11000 Richmond Avenue, Suite 600, Houston, Texas 77042
+1 713 953 7787info@rnlawgroup.com

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