Common H-1 Cap Questions
Posted Oct 15, 2004

At The Law Office of Sheela Murthy, P.C. we continue to receive numerous questions resulting from the H1B cap's having been reached on October 1, 2004 for the fiscal year (FY) 2005. Some of the frequently asked questions were addressed in our October 8, 2004 MurthyBulletin article, H-1 Cap Reached : FY 2005, available on MurthyDotCom. As questions continue to pour in, we have selected those that are common and fairly straightforward to address.

Q. Can people on H-4s get H1Bs, even through the cap has been reached?

A. No. Having an H-4 does not exempt a person from the cap. If s/he has not previously held H1B status and is not seeking to work for a cap-exempt employer, an H1B is not possible until cap numbers become available, once again, on October 1, 2005.

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Q. I heard that if I use premium processing I can still get an H1B, even though the cap has been reached.

A. No. Premium processing is a way to speed a decision in a case. It is not some sort of special program with extra cap numbers or exemptions. A cap-subject H1B case filed after the cap has been reached will be rejected and returned by the USCIS Service Center, whether or not premium processing is requested.

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Q. My employer was slow in getting the H1B papers together so that it was not filed in time for the cap. I am not going to be able to stay in the U.S. and work without the H1B. This will cause problems for me, my family, my employer. Is there any way we can explain this situation and get an H1B after the cap has been reached based upon hardship or something?

A. No. The H1B cap is a hard and fast numerical limitation under law. Once it has been reached, there are simply no more cases that can be filed. There are no special exemptions for hardship or any of the other problems that are going to be caused by the lack of H1B numbers for this fiscal year. A person is allowed to consult an attorney to consider other options like the O-1 or some other classification. New H1Bs will only be available with a start date of October 1, 2005, unless Congress increases the quota for this FY2005.

We at The Law Office of Sheela Murthy will continue to monitor questions and misperceptions surrounding the H1B cap so that we can provide some helpful guidance and information to MurthyDotCom and MurthyBulletin readers.