H-1B VISAS - Options for The H-1B Visa Cap And Prior Visas (OPTs) that Expire Before October 1

With the H-1B visa filing season coming upon us once again, employers, graduating students and others that have been waiting should begin preparing to meet the H-1B filing rush. Applicants and employers should plan to have any H-1B petitions submitted and received by USCIS by April 1. 

While the USCIS is likely to begin accepting applications on April 1, the date on which employment and H-1B status can actually begin is October 1. Those whose prior visas expire before October 1 will be out of status for the period in between.

Since it is impossible to determine how quickly the cap of 65,000 visa will reached, applicants should begin the process now so that their petitions are ready for submission by the end of March. 

For those who may not meet the initial rush, there are additional considerations that may offer some hope for later submissions, as follows.

U.S. Master's Degree Holder: H-1B visa applicants in this category have a larger number of visa allocations and may take longer to reach the cap.

Chile and Singapore Citizens: Applicants in this category are subject to different H-1B caps that may not fill as quickly as the normal cap.

Citizens of Mexico and Canada: These applicants may be eligible for the TN classification under NAFTA that is not subject to the H-1B cap.

Citizens of Australia: Who qualify for the H-1B classification would likely qualify for the [E-3 classification] that is not subject to the H-1B cap.

H-1B Cap-Exempt Employers: Educational institutions and certain non-profit and/or research organizations that are affiliated with educational institutions are entirely exempt from the cap. Qualifying employers in this category may apply for H-1B visas at any time without regard to the cap.

Returning H-1B Visa Holders: Those who held H-1B visas in the past and left the country for one year or more may avoid the cap if they have not exhausted the 6-year limitation on H-1B stay.

J-1/Conrad 30 Visa Waiver Physicians: Physicians who received a Conrad 30 waiver of the 2-year foreign residence requirement are not subject to the H-1B visa cap at all. Visit our Physician Information Center for details.

Health Care Workers: The law provides multiple visa options for health care workers that may provide additional avenues for avoiding the cap.

H-1B visa Options for F-1 Students on Optional Practical Training (OPT)Bridging the Gap: Graduating students with F-1 optional training visas (OPT) that will expire before October 1, 2008 will either need a method to bridge the visa gap or leave the country and return on or after October 1, 2008.  The following considerations will help applicants in this situation evaluate their options.

60-day Grace Period: An F-1 student is considered to still be in status during the 60-day grace period after the expiration of the F1 optional training visa (OPT).

Returning to F-1 student status: If appropriate, a candidate may apply for admission to a program for the period of the gap by securing a Form I-20 and extending his or her F-1 visa status until an H-1B visa status can be assumed.

B-1/B-2 Visa Change: If appropriate, those affected can explore whether it is appropriate to seek a visitor visa to cover the period of the gap

O-1 Visa Option: Candidates should thoroughly evaluate whether they qualify for the [O-1 visa] which is not subject to the cap.  Note however, that the requirements for this visa are quite significant.

Green Card/Permanent Residency Option: Applicants who qualify for permanent residency through the EB-1  or EB-2 classification may complete the green card process fairly quickly if these classifications remain current in the visa bulletin.

The Regulations that address this H-1B OPT Cap Gap issue and extension contain detailed requirements necessary to qualify Read the Regulations 

 Call Uche O. Asonye at (312) 795-9110, Contact us or e-mail him at This email address is being protected from spambots. You need JavaScript enabled to view it. to evaluate your H-1B visa options and how to deal with the issues raised by the H-1B visa cap for yourself or employees. Our firm attorneys are experienced H-1B visa issues, other employment visas as well health care worker visas issues. See H-1B Overview for general information.