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AM I SUBJECT TO THE H1B CAP?

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  • AM I SUBJECT TO THE H1B CAP?

    I've just got my Masters under an F-1 status, and got my OPT from 12/2003 to 12/2004. Before that I worked in the U.S. under an H1-B status from 12/1998 to 12/2001. I also had F-1 status and OPT before my first H1-B. I am now applying for jobs and hoping to be sponsored by a new employer. Now that the H1-B cap for FY 2004 was reached, am I subject to the cap? Or will I be able to get my H1-B without having to wait until October 2004?

    Thank you very much. This is probably a tough call. But I read a lawyers' article. Pls, read below:
    "Also, the law (Section 214(g)(7) of the Immigration and Nationality Act)
    states: 'Any alien who has already been counted within the 6 years prior to
    the approval of a petition described in subsection (c), toward the numerical
    limitations of paragraph (1)(A) shall not again be counted toward those
    limitations unless the alien would be eligible for a full 6 years of
    authorized admission at the time the petition is filed. Where multiple
    petitions are approved for 1 alien, that alien shall be counted only once.'
    This means, for example, that a person who was in H-1B status in 2002, who
    was counted toward the cap, and who changed his status to F-1 student,
    is eligible to change his status back to H-1B without regard to the cap."

  • #2
    I've just got my Masters under an F-1 status, and got my OPT from 12/2003 to 12/2004. Before that I worked in the U.S. under an H1-B status from 12/1998 to 12/2001. I also had F-1 status and OPT before my first H1-B. I am now applying for jobs and hoping to be sponsored by a new employer. Now that the H1-B cap for FY 2004 was reached, am I subject to the cap? Or will I be able to get my H1-B without having to wait until October 2004?

    Thank you very much. This is probably a tough call. But I read a lawyers' article. Pls, read below:
    "Also, the law (Section 214(g)(7) of the Immigration and Nationality Act)
    states: 'Any alien who has already been counted within the 6 years prior to
    the approval of a petition described in subsection (c), toward the numerical
    limitations of paragraph (1)(A) shall not again be counted toward those
    limitations unless the alien would be eligible for a full 6 years of
    authorized admission at the time the petition is filed. Where multiple
    petitions are approved for 1 alien, that alien shall be counted only once.'
    This means, for example, that a person who was in H-1B status in 2002, who
    was counted toward the cap, and who changed his status to F-1 student,
    is eligible to change his status back to H-1B without regard to the cap."

    Comment


    • #3
      You should be subject to the cap because you would be eligible for a new 6 year period in H-1B status, even if you held H-1B status until 2001. Since your OPT is valid until 12/2004, you should be ok timewise. The I-129 H supplement asks to list time spent in H-1B status for the past 3 years. If you were not subject to the cap, you would only have 3 years remaining on your H. This is definitely something a good lawyer could help with.

      Comment


      • #4
        Thank you. Can someone then interpret the analysis that I quoted in my question?

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