Understanding H-1B Lottery Exemptions: Do Previous Winners Need to Reapply?
In the realm of U.S. immigration law, one of the key regulations governing the H-1B visa process is outlined in 8 CFR 214.2(h)(8)(ii)(A). This regulation stipulates that each individual who has been issued an H-1B visa, or has otherwise been granted H-1B nonimmigrant status, is counted against the applicable numerical cap (unless their petition was filed by a cap-exempt institution). Crucially, for those who have previously been selected in the H-1B lottery and received petition approval, this alone may not suffice to be considered ‘counted’ in the cap for the purpose of avoiding the lottery in subsequent applications. To meet the ‘counted’ criteria fully, an individual must have not only been selected in a previous year’s lottery and received petition approval, but they must also have either obtained the H-1B visa stamp at a U.S. consulate or embassy if they were outside the United States at the time of approval, or have been granted a change of status if they were already in the United States (meaning the approval came with a new I-94 card at the bottom).
How to Benefit from Previous H-1B Cap Approvals in Subsequent Applications
For individuals who meet the aforementioned criteria and are currently outside the United States, a specific process must be followed to utilize their prior H-1B cap approval. In this scenario, a U.S. employer is required to file a new H-1B petition on behalf of the individual. This petition should be submitted with a request for consular processing. Importantly, on the H-1B Data Collection and Filing Fee Exemption Supplement form, the employer must select the option indicating “cap exempt.” This selection corresponds to the situation where “The beneficiary of this petition has been counted against the cap and (1) is applying for the remaining portion of the 6-year period of admission.” To strengthen the application, it is crucial to include a copy of the prior H-1B petition approval. If this approval had previously granted a change of status, the submission should include the corresponding I-94 form. Alternatively, if the prior approval was for consular processing, a copy of the H-1B visa stamp should be provided. This documentation is essential to demonstrate the beneficiary’s eligibility for the cap exemption and to facilitate the process of obtaining an H-1B visa to reenter the United States.
For individuals in the United States under a different nonimmigrant status who are eligible to use a prior H-1B cap approval, a different filing procedure applies. In this scenario, the U.S. employer must file a new H-1B petition for the individual, but can request a change of status instead of consular processing. On the H-1B Data Collection and Filing Fee Exemption Supplement form, the application should be marked as “cap exempt,” indicating that the beneficiary has already been counted against the cap and is applying to utilize the remainder of their 6-year admission period. Crucially, the petition must be accompanied by evidence that the applicant is maintaining their current nonimmigrant status. This includes approval notices and the current I-94 record. Additionally, documentation related to the prior H-1B approval is required. As above, if the prior approval had granted a change of status, the submission should include the corresponding I-94 form. Alternatively, if the prior approval was for consular processing, a copy of the H-1B visa stamp should be provided. These documents are essential to demonstrate the beneficiary’s continuous lawful status in the U.S. and to support their eligibility for a change of status under the H-1B visa program without going through the lottery again.
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