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Dec 29

H-1B Cap Exempt Employers

H-1B Exempt Employers

Institution of higher education, non-profit entity related or affiliated to an institution of Higher education, non-profit research organization or a governmental research organization are exempted in H-1B cap and they can hire qualified professionals at any point of time during the year.

H-1B petition preparers should mention this information in Letter of Support and they have to check appropriate options in I-129W (Data Collection). Appropriate certificates, which prove about H-1B exemption, should be attached along with H-1B petition.

H-1B Exempt based on H-1B maxout, PERM and I-140:

What is Recapturing or Maxout?

When the beneficiary works in H-1B or L-1 visa, Recapturing is a process to calculate the number of days the beneficiary stayed outside US during that period. If H-1B petition has been approved in CAP, usually 3 years employment visa is provided by USCIS and consulates. For calculation purpose, we have mentioned the total visa stay of 6 years. If candidate has stayed outside of US within these 6 years, those days can be calculated and H-1B extension can be applied by taking account of these days. Please see the examples below for better clarification.

Example: H-1B Extension based on Maxout (Recapturing):

Total Validity: 6 years. Initial Start Date: 01-Jan-2009; Initial End Date: 31-Dec-2015

Days stayed outside US within that 6 years: 1 year

Extension based on maxout: 1 year

Start Date: 1-Jan-2016; End Date: 31-Dec-2016

If required, H-1B petitioner preparers should attach a sheet, which explains how the total no. of days stayed outside US have been calculated.

Similarly maxout can be done for L-1A and L-1B.

Example: H-1B Extension based on PERM and Maxout: 

If PERM has been applied (a process in obtaining Green Card) before 1 year of completion of 6 years, then H1B visa can be extended on year to year basis before the approval of PERM. For the first extension of H1B visa based on PERM, MAXOUT days can be added to this extension.

First extension based on PERM.

Total Validity: 6 years. Initial Start Date: 01-Jan-2009; Initial End Date: 31-Dec-2015

Days stayed outside US within that 6 years: 1 year (recapturing)

Extension based on PERM: 1 year (PERM) + 1 year (recapturing) = 2 years

Start Date: 1-Jan-2016; End Date: 31-Dec-2017

Example: H-1B extension based on I140:

I-140: If I-140 has been approved, then H-1B visa can be extended for another 3 years.

Total Validity: 6 years. Initial Start Date: 01-Jan-2009; Initial End Date: 31-Dec-2015

Days stayed outside US within that 6 years: 1 year

Extension based on I140. (There is no need to recapture the days stayed outside US, since 3 years can be extended using I-140)

Start Date: 1-Jan-2016; End Date: 31-Dec-2018

 

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