Moving from Cap-Exempt to Cap-Subject H1B

This article addresses a concern that was raised in a recent MurthyChat session, regarding changes of employment for those working in H1B status in cap-exempt employment. Readers who wish to transition from H1B cap-exempt employment to cap-subject employment are advised that it is necessary to contend with the cap, in such instances.

Is a Cap Number Needed to Move from Cap-Exempt to Cap-Subject Employment?

We were asked in a recent session of the MurthyChat whether it is possible to move from H1B cap-exempt employment to H1B cap-subject employment after the cap has been reached. In most situations, the answer to this question is, “No.” This is a particularly important topic, in light of the upcoming fiscal year (FY) 2014 H1B cap filing season, which is discussed in our article, FY14 H1B Cap Season: Get an Early Start (30.Nov.2012).

If an individual has never held H1B cap-subject employment, changing jobs to a cap-subject employer requires filing an H1B cap-subject case. This means that it is necessary to consider the H1B cap timing restrictions when establishing a start date for the new employment, as well as making sure that the case is prepared and filed in time to obtain one of the limited cap numbers. This is a common situation for those who wish to transition from university employment or employment with university-affiliated hospitals to employment within cap-subject sectors. We at the Murthy Law Firm find that such individuals are sometimes unaware of this restriction and may inadvertently lose out on the opportunity for cap filings.

Exception: Concurrent Employment

There is an exception to the cap requirement, which applies to cases involving concurrent H1B cap-exempt and cap-subject employment. Under a USCIS memorandum, an individual holding an H1B cap-exempt status may obtain approval of a cap-subject H1B petition if it is filed for concurrent employment. This strategy is often used by International Medical Graduates transitioning to private employment after completion of their residencies or fellowships in H1B status through cap-exempt hospitals. This is an important strategy for these individuals, as the timing of the completion of their programs does not usually coincide with the availability of H1B cap numbers.

Exception: Previous Cap-Subject Employment

When describing the general rule, we referred to individuals who had never held H1B cap-subject employment. The situation is often different for those who, at one time, held cap-subject employment, but later moved to cap-exempt employment. In most such situations, transitioning to a cap-subject employer does not require filing an H1B case against the cap. It is best to get case-specific advice in these situations, as there are a number of nuances and fact-specific variations.

Conclusion

Rules of the H1B cap can be a bit complex. When in doubt about cap questions, it is best to obtain advice from a qualified, experienced immigration attorney. The filing window for the H1B cap has gotten smaller in recent years, leaving less room for error or delay. The attorneys at the Murthy Law Firm are available to answer questions and to provide representation in H1B case filings.

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