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H1 transfer between cap exempt and non-cap exempt firms

Jersey City, NJ |

I currently have a H1B visa that is not cap-exempt. My current employer is not a cap-exempt entity.

I plan to transfer this to a cap-exempt employer ( non-profit) soon. If, say after a year or so, I have to move back to a non cap-exempt employer, will I face any complications?

In particular, will I be able to transfer back to a non cap-exempt employer even after the H1-B slots for that year have been exhausted?

I can certainly do this when transferring between non-cap exempt employers. But what if I am going from a cap-exempt one to a non-cap exempt one?

Attorney Answers 3


You are not subject to the cap if you were counted against it within the past six years of applying. This means that you should be able to transfer from a cap-exempt employer if you initially were counted against the cap within a six year period.

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If you were counted against the cap once you will not be counted again. What you need to worry about is the limit on your stay (two 3-year periods).

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I concur with these answers.

Lynne R. Feldman, Attorney at Law
Concentrating in Immigration and Nationality Law
2221 Camino Del Rio South, Suite 201
San Diego, CA 92108
phone: (619) 299-9600, facsimile: (619) 923-3277

Formerly Adjunct Professor -- Immigration law
University of Illinois College of Law

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