by Chris Musillo

1.These types of cases are subject to the H-1B cap:

  • International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
  • International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
  • Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
  • Prospective international employees currently living abroad.


2.These types of cases that are not subject to H-1B cap:

  • H-1B amendments/extensions/transfers
  • When the employee has been in H-1B status for less than 6 years
  • Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
  • MDs who have received a J-waiver of their 2 years foreign residency requirement.
  • H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.



3. Employees with a U.S. master’s degree or higher get two chances at the H-1B cap. The USCIS first runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. All H-1B applicants who lose this lottery are then placed in the general 65,000 H-1B lottery.

4. Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery. The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

6. We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS. USCIS may consider the petition to be abandoned. If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved. If the worksite changes the USCIS is inclined to deny the case. If possible the H-1B cap petition should be upgraded via Premium Processing. Upon approval of the H-1B, the employer can file an H-1B amendment.

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