The qualification/requirement of being a H1b Cap Exempt Candidate

USA H1B Visa
1

Thank you so much for reading my question. My question is about the specific qualification/requirement of being a H1b Cap Exempt Candidate.

I plan to apply for H1b (final chance) in April next year and go back to school in autumn. If my H1b application is selected and I go to school in autumn, my visa status has to be transferred from F-1 (currently in STEM OPT) to a new F-1 some time between June and August, before Oct 1. Because I wouldn’t have a second OPT after I graduate, I am worrying about my working visa at that time.

I heard that certain individuals are exempt from H1b cap if they have been counted in the last 6 years. They can go back to school (transfer to F-1) and revert back to H1b to use the unused time. Assuming my H1b application could be selected in the lottery and approved next year, which one below is the minimum requirement of becoming such H1b cap exempt candidate?

  1. Petition selected in the lottery and receipt number received in May

  2. Petition reviewed and approved by USCIS some time in June or July

  3. H1b activated on Oct 1 and using it to work (this option does not work for me unless I defer my enrollment to school, right?)

Is there any official rule clarifying this?

If 1) or 2) works it would be ideal because I can be reissued the H1b right after graduation. But if only 3) works, is there any way to work around it? I heard that there is a way of activating H1b called Consular Notation. Is it possible to activate my H1b early in June or July using consular notation and then transfer to F-1 shortly?

Thank you so much for your time and help.

2

As long as your H-1 petition was selected in the lottery and was approved, you can use it for cap-exempt purposes in future.

Here are few others things you can do:

  1. Apply for H-1 in PP, so that you know about your result (selection and approval) quickly. This way you can decide whether to enroll in new school or not

  2. Look-up cap-gap. If you apply for H-1 w/ COS and are selected in lottery, you can get cap-gap through Oct 1. This way you can continue to stay and work on OPT while H-1 hasn’t been activated yet.

3

Do you mean that achieving 2) is enough and I do not need to wait until 3) (Oct 1) to become eligible for cap exemption? (I will use PP)

Then what would happen if my employer revoke my H1b after I leave them for school before Oct 1? Will it affect my exemption?

Is there anything else I need to be careful about to secure the exemption?

4

Yes, I have seen instances when person was able to get cap-exempt petition approved even though it was just approved but the person was never on H-1 status.

You will have to make sure that employer doesn’t file H-1 w/ COS if you eventually want to enroll in another school. If COS is applied and approved and later revoked (as part of H-1 withdrawal by employer), then you will have to work w/ DSO to make sure your SEVIS record is still active and not marked as closed (it will be marked as closed if COS is filed and approved).

Have a copy of the approval notice to file cap-exempt petition in future.

5

That is a very good point. Then what is the best way for my employer to file H1b in March? H1b w/ consular notation (so it would fine even if they revoke/terminate my H1b petition with them?) or in any other way?

Also it may be good if I do not talk with my employer about it too early (before the petition approved). Is it possible to apply it w/ COS first, then cancel the COS process after petition is approved?

6

If you can talk to employer about filing w/ consular processing, then that would be ideal. If they do file it w/ COS, then just travel outside US while it is pending and COS would be abandoned. You would remain on F-1 and continue w/ new school. You will have to still check w/ DSO to make sure SEVIS record is reactivated after COS abandonment.

7

Understood. Thank you Saurabh! Your advice is very helpful.