Here are some examples:
1.Myra currently holds H-1B status. She wants to transfer to another employer. Does she have to worry about the H-1B cap?
The answer is no. Persons in H-1B status who are seeking extensions of stay or changing employers are generally exempt from the cap since they had been counted against the cap during the previous year(s).
2.After the H-1B visas ran out, a recruitment agency told Janice, a tourist, that they could find her a job in Los Angeles. When she asked questions regarding the H-1B cap, they told her that the employer is a non-profit store (i.e., all profits from sales go to charity) and therefore, exempt from the H-1B cap. Is the agency correct or simply out to get her precious money?
Janice should run away from said agency as fast she can. Not all nonprofit organizations or entities are exempt from the H-1B cap. The only ones exempt are nonprofit research organizations or governmental research organizations.
3.Loma Linda University Hospital, a nonprofit institution wants to file an H-1B petition in behalf of Janna. Would it be allowed to petition her even if the H-1B cap had already been reached?
Yes. The hospital is related to or affiliated with Loma Linda University, an institution of higher learning. Institutions of higher learning as well as organizations or entities related to or affiliated with an institution of higher education, whether for profit or non-profit, are exempt from the H-1B cap.
4.Peter, lawyer from the Philippines, has master’s degree in law from a university in Boston. A law firm in California wants to file an H-1B petition on her behalf. Does he have to worry about the H-1B cap?
At this point in time, he need not worry about the H-1B cap. The H-1B Reform Act of 2004 provides for a second H-1B cap of 20,000 for persons who hold advanced degrees from U.S. institutions of higher learning.
5.Leo is a doctor from the Philippines who holds a J-1 status. He was able to obtain a waiver of the 2-year foreign residency requirement. Can his employer file an H-1B petition on his behalf without worrying about the H-1B cap?
Yes. Since Leo is a J-1 nonimmigrant alien who received a waiver of the 2-year foreign residency requirement, then he is exempt from the H-1B cap.
6.Marianne, an H-1B holder for more than two years, resigned from her job and went back to the Philippines for nine months. A new employer now wants to file an H-1B petition on her behalf. Is she exempt from the H-1B cap?
Marianne is exempt from the H-1B cap because she has previously been granted status as an H-1B nonimmigrant in the past six years and has not left the United States for more than one year after attaining such status.
7.Carmen holds H-1B status for almost six years now. She has an approved labor certification application and immigrant petition but visas are not yet available for her employment-based preference category. Will she be allowed to extend her H-1B status in excess of six years? Is she exempt from the H-1B cap?
Yes. A beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the application of the per-country limits may obtain extension of the H-1B status until the adjustment of status is decided.
8.Achilles holds H-1B status for almost six years now. He has an approved labor certification application but the immigrant petition filed on his behalf by his employer has not been approved yet. It has been pending for more than a year now. Will he be allowed to extend his H-1B status in excess of six years? Is he exempt from the H-1B cap?
Yes. An H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.
If you want to know more about this topic, please feel free to call us at (818) 956-8844 [Glendale] or at (626) 331-8188 [Covina] to schedule an appointment for your free initial consultation, or visit us at www.palacioslawfirm.com.
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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios, APLC. He has great depth of experience and a successful track record in handling employment-based and family-based petitions as well as PERM and naturalization applications. He is also an active member of the American Immigration Lawyers’ Association. His offices are located at 100 North Brand Boulevard, Suite 600, Glendale, California 91203 and at 800 South Barranca Avenue, Suite 250, Covina, California 91723.
The above article does not, and is not intended to, constitute legal advice for a specific immigration problem and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.
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