Is laid-off H-1B who returned home subject to cap for new job?

If your old job was subject to the cap, your new one probably won't be.

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Question

I lost my job a few months ago through a company layoff. My employer, a large bank, had sponsored me for an H-1B visa and paid for my airfare to return to my home country. This was my first H-1B visa, and I was with the company in the United States for two years. I'm now seeking another company to sponsor me for an H-1B visa. Will I again be subject to the H-1B cap? It was nerve-wracking the last time around, wondering whether the visas would run out for the year before I got mine.

Answer

From what you describe, you are not subject to the H-1B "cap," or quota, that applies to H-1B visas. As you may be aware, there are 65,000 visas available for each federal fiscal year, which runs October 1 to September 30 of the following year. The first 20,000 petitions submitted for persons with U.S. graduate degrees are not subject to the cap. This in effect makes the annual limit 85,000.

The H-1B cap applies to persons obtaining an H-1B visa for the first time and to persons who previously had an H-1B visa, have spent one year abroad, and now are eligible for the maximum six-year period of H-1B status.

The H-1B cap also applies to persons who had H-1B visas to work at a "cap-exempt" employer, such as a college or university or affiliated nonprofit. In this latter situation, if you work at a cap-exempt employer and then move to a cap-subject employer, which includes nearly all private sector employers, you will require one of the 85,000 visas.

In your case, you've used up only two of your six years of H-1B eligibility, and you just recently returned to your home country. Therefore, because you were counted against the cap with your recent employer, a new employer can now sponsor you, and you should be able to return to the United States and work for the new company.

If the H-1B visa stamp in your passport from your previous employer remains valid, you can use that visa and the I-797 Approval Notice for your new employer's H-1B petition to enter the United States. You simply need to explain to the U.S. Customs and Border Protection officer at the airport or border crossing that you have a new H-1B employer. You also need to make sure that the officer grants you a period of stay that corresponds to your new employer's I-797 Approval Notice, rather than the visa from the former employer.

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