Many skilled professionals working in academic institutions or other cap-exempt organizations may believe that obtaining an I-140 approval can help them bypass the H-1B visa cap. Unfortunately, this is not the case. While an I-140 is a significant milestone in the green card process, it does not provide an exemption from the H-1B visa cap for most individuals. In this blog, we’ll explain the difference between the I-140 and H-1B cap, and clarify why an I-140 approval doesn’t guarantee you can avoid the H-1B lottery.
What Is the I-140 Petition?
The I-140, or Immigrant Petition for Alien Workers, is a petition filed by an employer on behalf of a foreign worker as part of the employment-based green card process. This petition confirms that the employer wants to hire the worker permanently and that the worker is eligible for a green card under one of the employment-based categories.
An approved I-140 is crucial in the path to permanent residency, but it does not provide authorization to work in the U.S. on its own. The worker still needs a valid visa status to stay and work in the U.S. while waiting for their green card. For many skilled workers, this is where the H-1B visa comes into play.
Understanding the H-1B Cap
The H-1B visa is one of the most common nonimmigrant visas for foreign workers in specialty occupations, such as technology, engineering, and higher education. However, there is an annual cap on the number of new H-1B visas issued:
- Regular Cap: 65,000 H-1B visas are available each fiscal year for most applicants.
- Master’s Cap: An additional 20,000 visas are reserved for applicants with advanced degrees from U.S. institutions.
Once the cap is reached, the only way to get an H-1B visa is to wait for the next fiscal year or to be employed by a cap-exempt employer.
Cap-Exempt Employment and I-140 Misunderstandings
Some workers in academic institutions, nonprofit organizations, or government research institutions are employed in positions that are exempt from the H-1B cap. These institutions can sponsor H-1B visas at any time, without worrying about the annual limit.
This cap-exempt status often leads to a misunderstanding. Many people assume that because they have an approved I-140 petition, this will automatically allow them to avoid the H-1B cap if they switch to a cap-subject employer. However, this is not the case.
Why I-140 Approval Does Not Exempt You from the H-1B Cap
Here’s the key point: an I-140 approval means that your employer has committed to sponsoring you for a green card, but it does not affect your H-1B status or eligibility for an H-1B visa.
If you are working for a cap-exempt employer and later switch to a cap-subject employer, you will be subject to the H-1B cap like any other applicant. The only exceptions to this rule are for certain workers with H-1B visas who are seeking an extension beyond the usual six-year limit, based on the I-140 approval.
In other words, while your I-140 approval keeps your green card process moving forward, it does not provide a pathway to bypass the H-1B lottery system.
Example Scenario
Let’s say you are currently working at a university, which is a cap-exempt employer, on an H-1B visa. Your employer files and obtains approval for your I-140 petition as part of the green card process. Later, you decide to take a job at a private company that is subject to the H-1B cap.
Even though you have an approved I-140, your new employer must enter you into the H-1B lottery. If selected, you can proceed with the job, but if not, you’ll need to explore other options for maintaining your immigration status.
Can You Avoid the H-1B Cap?
There are a few ways to avoid the H-1B cap if you’re concerned about the lottery system:
- Cap-Exempt Employers: Staying with or switching to a cap-exempt employer (e.g., universities or nonprofit research institutions) means you won’t have to worry about the H-1B cap.
- Other Visa Options: Depending on your situation and qualifications, you might explore other work visas, such as the O-1 visa for individuals with extraordinary abilities, TN status for Canadians and Mexicans, or the L-1 visa for intra-company transferees.
- H-1B Extensions Beyond 6 Years: If your I-140 is approved, and you have been waiting for your green card for over a year, you may be eligible for an H-1B extension beyond the typical six-year limit, even if you are subject to the cap.
Conclusion
In summary, an I-140 approval is an important part of your immigration journey, but it does not exempt you from the H-1B cap if you are switching from a cap-exempt employer to a cap-subject employer. Be sure to carefully plan your next steps and consult an immigration expert to navigate the complexities of visa status changes. If you’re in a cap-exempt position and thinking about making a move, ensure you understand the risks of being subject to the H-1B lottery. With proper guidance, you can avoid disruptions to your immigration status and keep your career moving forward.
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