Cap-Exempt Cases, Filings on Behalf of Current H-1B Workers Continue to Be Accepted

USCIS will continue to accept H-1B petitions that are not subject to the numerical limitation. Employers should be aware that the cap does not affect H-1B employees who: (1) change employers; (2) apply for extensions of stay; and, (3) change jobs where the employer files to amend a previously approved petition. Also, the cap does not apply to employees of institutions of higher education and related non-profit entities, non-profit research organizations, or governmental research organizations. Also, the cap does not apply to for-profit employers hiring workers to be Òemployed atÓ a cap exempt facility.

In order to obtain more H-1B numbers, Congress will need to enact new legislation. This is unlikely to happen in the near future.

Employers who miss this yearÕs cap will have to wait to file new H-1B petitions commencing in Fiscal Year 2018. Those H-1B numbers will only be available for start dates on or after October 1, 2017. Employers may file up to six months in advance of the H-1B visa or status start date, which will be April 1, 2017 at the earliest, and should plan their case strategy accordingly.