H-1B cap-subject filings can be filed on April 1, 2013, which is six months prior to the beginning of the fiscal year 2014 that begins October 1, 2013. The law allows H-1B cases to be filed up to six months before the requested start date for employment. The first allowable date of employment is October 1, 2013. Last year, the FY13 cap was reached in June. This year, the cap is expected to be reached even earlier.Wrong assumptions are made often! Allow Kennedy Law Firm to determine whether you are truly subject to the cap. You do not become H-1B cap subject just because you are convert status to an H-1B. Likewise, being cap subject does not buy you extra time.
Petitions received on the date the cap is reached are subjected to a random selection process for the cases to be adjudicated. Fees are returned to those not selected.
Initial petitions may be approved for up to 3 years with extensions also up to 3 years. Neither the initial grant or the extension may be longer than the validity of the labor condition application.
The general rule is that the H (as well as the L) status cannot exceed six years without an intervening residence abroad of one continuous year. Certain instances allow for an extension beyond the sixth year. (See below for additional information on such methods.)
Also, a new six-year period may begin after the alien worker has resided outside of the United States for a year (365 days) or more and a new petition is approved for that worker.
An alien worker can recoup any unused time from the six years allocated to him or her on a previously issued H-1B visa. This holds true even when the H-1B has been outside of the U.S. for more than one year.
Days spent abroad do not accrue and may be recaptured to extend the H-1B status. It is the H-1B status holder who has to prove the days spent abroad.
An alien who hold or have held H-1B status and who has been lawfully admitted without subsequent unlawful employment may begin work for a new employer at the time of filing the petition rather than waiting for USCIS approval.
Consultation with an attorney is necessary before using portability aggressively. Employers and aliens should be fully advised about potential employer sanctions, accrual of unlawful presence invoking bars on reentry, and findings of misrepresentation.
KLF may advise someone who took an aggressive position to, after approval of a new petition, depart and return. This arises where concern exists about the impact from working before approval, which can be cured by such a post-approval trip. Consultation is required to deal with Dept. of State questions about past violations.