H1B Transfer / H1B Cap
What is the H-1B Cap?
There are only 65,000 H1B visas available each fiscal year (which begins on October 1 of each year). The earliest that an H-1B petition can be submitted is 6 months before the start date of employment. For the last several years, the H-1B cap for the following fiscal year was filled on the first day that a petition could be submitted, April 1.
H-1B Change of Employer (H1B Transfer)
Once you are granted H-1B status, you can transfer to work for any other employer as long as the position meets the requirements of the H-1B classification. As a result, if the physician obtained an H-1B visa subject to the cap, the physician can change employers without regard to whether the cap has been filled. However, if your H1B status is based on employment in a cap-exempt position and the change is to a non-exempt position, your change of employer petition will be subject to the cap. This will be significant if the cap has already been filled for the fiscal year.
What are the Requirements for an H1B Transfer – Change of Employer?
The H-1B physician must be in H-1B status; admitted lawfully to the U.S.; maintained lawful status; worked in lawful status; and the new petition must be filed prior to the expiration of the employee’s current H-1B status.
When is the 7th year extension available for an H1B applicant?
An H-1B visa is granted for three years, but can be extended for three more years for a total of six years.
The “seventh year extension” under the American Competitiveness in the 21st Century Act (AC21) affords the physician the right to extend his or her H-1B visa beyond the six-year limit, in one-year increments, if a labor certification, or I-140 petition or adjustment of status application (based on an approved certification), has been pending for more than 365 days from the date the labor certification or I-140 was filed. The 7th year rule applies even if the labor certification or I-140 petition was filed by another employer.