Avoiding the H-1B Cap
With a Little Help from the USCIS

Recently, one of our corporate clients called us to request our help in securing H-1B status for a person they wished to hire. The question was whether the employee was subject to the H-1B cap.

Mr. Reddy was working as a contractor at their facility through a software consultancy firm. He was engaged in developing and implementing a new software system. The company was very impressed with Mr. Reddy, and wanted to hire him.

We started collecting documentation that included his educational background and immigration status to verify Mr. Reddy’s eligibility for H-1B status. Although he was eligible for an H-1B visa, there was a slight hitch since he was currently working in L-1B status. The details of the L-1B work visa can be accessed from our L-1B Visas page.

Our law firm could prepare an H-1B petition, and upon selection in the H-1B lottery and approval of the petition, our client could hire Mr. Reddy as of October 1. H-1B visas are capped at 85,000 per fiscal year and the fiscal year begins on October 1. The USCIS accepts the H-1B visa petitions beginning on April 1 for jobs that start on October 1.

For more details, see our H-1B Visas page. However, the company’s manager informed us that they needed Mr. Reddy now and could not wait until October 1 because of a project deadline that they had to meet. The company’s HR team and other managers had interviewed Mr. Reddy extensively and did not want to lose this talented individual.

How could the company avoid the H-1B cap?

Client Reviews

In one of our conference calls with the HR representative and Mr. Reddy, we were able to elicit a very important piece of information. A couple of years ago, Mr. Reddy’s current employer had obtained the approval of an H-1B petition for him which was never used.

Eureka!

We were ecstatic since this meant that our client’s H-1B petition for Mr. Reddy would not be subject to the H-1B cap and, therefore, they could hire him as soon as the petition was approved. A person who has been petitioned within the past six years is not counted against the cap under section 214(g)(3) of the immigration law.

However, when we asked Mr. Reddy for a copy of the Notice of Approval of the H-1B petition, he gave us some bad news. Not only wasn’t he given a copy, he had never even seen the approval notice, and he did not want to ask his employer for a copy of the notice. Without a copy of the Notice of Approval, how could we prove he was not subject to the cap?

We asked Mr. Reddy to check all of his immigration paperwork and get back to us quickly. He called us the next day to inform us that he found a copy of his employers’ letter addressed to the U.S. Consulate for his L-1B visa interview. In it was listed previous petitions filed. The letter contained the H-1B approval receipt number.

Pay dirt!

When we typed in the receipt number into the Check Case Status section of the USCIS website, it indicated that an I-129 petition was approved 2 years previously. Although, the website does not indicate the name of the petitioner nor the beneficiary, we informed the company that we would attach a copy of the computer print-out in support of the company’s H-1B petition for Mr. Reddy.

We submitted the H-1B petition to the USCIS and requested premium processing. Our cover letter explained that the beneficiary had previously been counted against the H-1B cap and that his previous employer had not provided him with a copy of the Notice of Approval. We requested that the USCIS check their records to verify the accuracy of our contention that an H-1B petition had been approved on Mr. Reddy’s behalf.

Within a week, the USCIS favorably approved the H-1B petition!

Needless to say, both our corporate client and Mr. Reddy were extremely pleased since he was immediately able to join the project as an H-1B professional employee.

Read more of our Immigration Success Stories.

H-1B Visa Guide and the H-1B Cap Video

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