Does my friend fall in H1B Quota ?

[ravisekhar]

I am posting this for a friend. here is the situation

1) Received H1-B in Nov 2005. Worked in US till July 2007 (approx 1.8 Yr)
2) Left for India in July 2007. Absolutely no issues with status worked for a US company as a full time employee
3) Worked in India since then. Came to USA 4 times on B1 for a short 1 month type assignments. The H1B stamp was cancelled without prejudice before consulate stamped his B1 into passport
4) Wants to come back to USA on B1 and then transfer to H1B. Since he already has H1B once before if a new employer applies for H1B does his H1B comes under quota.

Thank you in advance for all the help

[Jonty Rhodes]

since this thread gets greater visibility Just posting the question i posted at http://www.qesehmk.org/forums/showthread.php?977-Does-my-friend-fall-in-H1B-Quota

Does my friend fall in H1B Quota ?
I am posting this for a friend. here is the situation

1) Received H1-B in Nov 2005. Worked in US till July 2007 (approx 1.8 Yr)
2) Left for India in July 2007. Absolutely no issues with status worked for a US company as a full time employee
3) Worked in India since then. Came to USA 4 times on B1 for a short 1 month type assignments. The H1B stamp was cancelled without prejudice before consulate stamped his B1 into passport
4) Wants to come back to USA on B1 and then transfer to H1B. Since he already has H1B once before if a new employer applies for H1B does his H1B comes under quota.

Thank you in advance for all the help

As far as I know, his H1B will come under annual H1B quota of 65,000 unless your friend is going to be employed by a not-for-profit organization. H1B visa sponsored by a not-for-profit organization is cap exempt and does not fall under annual quota of 65,000 or Master's quota of 20,000.

Just to give an example, I am a physician working for a not-for-profit hospital currently and my H1B did not fall under the cap or quota. Even when I did my post-graduation (Internal Medicine Residency), my H1B was cap exempt and did not fall under annual quota since that hospital was also not-for-profit. One of my colleague after the post-graduation got employed in a hospital through a health-care corporate company named IPC. The hospital where he is working is not-for-profit but the company that sponsored his H1B is for-profit so his H1B came under annual quota even though his previous H1B during post-graduation (Internal Medicine Residency) was cap exempt.

Hope this is helpful. Gurus, is there anything I am missing??? :p

[08OCT2008]

1. If his original H1B in 2005 was for not for profit and the new H1B is for profit company. - Comes under quota
2. If his original H1B in 2005 was for not for profit and the new H1B is for not for profit company. - Does not come under quota
3. If his original H1B in 2005 was for profit and the new H1B is for profit company. - Comes under quota since the H1b was counted beyond past 6 yrs. (What I have heard from the attorneys is that if a person is counted against cap in the past 6 yrs they would not need a cap number)
4. If his original H1B in 2005 was for profit and the new H1B is for not for profit company. - Does not come under quota


since this thread gets greater visibility Just posting the question i posted at http://www.qesehmk.org/forums/showthread.php?977-Does-my-friend-fall-in-H1B-Quota

Does my friend fall in H1B Quota ?
I am posting this for a friend. here is the situation

1) Received H1-B in Nov 2005. Worked in US till July 2007 (approx 1.8 Yr)
2) Left for India in July 2007. Absolutely no issues with status worked for a US company as a full time employee
3) Worked in India since then. Came to USA 4 times on B1 for a short 1 month type assignments. The H1B stamp was cancelled without prejudice before consulate stamped his B1 into passport
4) Wants to come back to USA on B1 and then transfer to H1B. Since he already has H1B once before if a new employer applies for H1B does his H1B comes under quota.

Thank you in advance for all the help

[Kanmani]

since this thread gets greater visibility Just posting the question i posted at http://www.qesehmk.org/forums/showthread.php?977-Does-my-friend-fall-in-H1B-Quota

Does my friend fall in H1B Quota ?
I am posting this for a friend. here is the situation

1) Received H1-B in Nov 2005. Worked in US till July 2007 (approx 1.8 Yr)
2) Left for India in July 2007. Absolutely no issues with status worked for a US company as a full time employee
3) Worked in India since then. Came to USA 4 times on B1 for a short 1 month type assignments. The H1B stamp was cancelled without prejudice before consulate stamped his B1 into passport
4) Wants to come back to USA on B1 and then transfer to H1B. Since he already has H1B once before if a new employer applies for H1B does his H1B comes under quota.

Thank you in advance for all the help

Ravisekhar, as per my understanding your friend's next h1b falls under cap count.


WHO IS EXEMPT FROM THE H-1B CAP?

"Some foreign workers are cap-exempt beneficiaries, and some U.S. employers are cap-exempt petitioners.

Foreign workers who already hold H-1B visa status in the U.S. are exempt from the cap if they were counted under the cap when their status was granted. This includes any worker already issued an H-1B visa abroad who has entered the US on that visa to work for the sponsoring employer, and any worker who was granted a change of status to H-1B, evidenced by a Form I-797 approval notice with a replacement I-94 portion. It does NOT include workers who currently hold H1B status in a cap-exempt job, such as a faculty or researchers at a university or government research institution, or physicians at teaching hospitals.
Workers in H-1B status who were cap-subject when they first obtained H status are exempt from the cap when seeking to extend their stay or change jobs. This even applies to workers currently outside the U.S., as long as they have held H-1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the U.S.

Certain non-profit employers are exempt from the H-1B cap, but not all types of non-profits qualify. The exemption only covers institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution. The types of non-profits that qualify for this exemption have been construed narrowly: At present, non-profit service, community, policy and arts organizations do not qualify for the cap exemption. Unless the non-profit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner.

Public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, and the offered job includes services under such an agreement, but many school districts do have such affiliations. The H-1B petition must include a copy of the affiliation agreement.

The H-1B cap exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians' practice group affiliated with and located at a university teaching hospital."

[ravisekhar]

Ravisekhar, as per my understanding your friend's next h1b falls under cap count.


WHO IS EXEMPT FROM THE H-1B CAP?

"Some foreign workers are cap-exempt beneficiaries, and some U.S. employers are cap-exempt petitioners.

Foreign workers who already hold H-1B visa status in the U.S. are exempt from the cap if they were counted under the cap when their status was granted. This includes any worker already issued an H-1B visa abroad who has entered the US on that visa to work for the sponsoring employer, and any worker who was granted a change of status to H-1B, evidenced by a Form I-797 approval notice with a replacement I-94 portion. It does NOT include workers who currently hold H1B status in a cap-exempt job, such as a faculty or researchers at a university or government research institution, or physicians at teaching hospitals.
Workers in H-1B status who were cap-subject when they first obtained H status are exempt from the cap when seeking to extend their stay or change jobs. This even applies to workers currently outside the U.S., as long as they have held H-1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the U.S.

Certain non-profit employers are exempt from the H-1B cap, but not all types of non-profits qualify. The exemption only covers institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution. The types of non-profits that qualify for this exemption have been construed narrowly: At present, non-profit service, community, policy and arts organizations do not qualify for the cap exemption. Unless the non-profit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner.

Public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, and the offered job includes services under such an agreement, but many school districts do have such affiliations. The H-1B petition must include a copy of the affiliation agreement.

The H-1B cap exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians' practice group affiliated with and located at a university teaching hospital."


Thanks Jonty Rhodes,08OCT2008, Kanmani for the responses.