Given the high demand and limited number of H1-B visas these days, employers are looking for creative ways to get skilled workers to the U.S.
A little known source of H1-B workers are foreign nationals who were approved for H1-B petitions subject to the cap in the past but never used them. The sponsoring employer may have gone bankrupt or closed. The foreign national may have found a better job in their home country. For whatever reason, they never took that approval letter to the embassy to get the visa.
Since these foreign nationals were already counted against past H1-B caps, they are considered "cap exempt." Companies can apply on behalf of unused, approved H-1B foreign nationals at any time during the year, without regard to the lottery, and request that the application be considered cap exempt. These unused H-1B approvals must have been issued within the past 6 years. The H-1B application forms, requirements and processes are the same - but the application is considered cap-exempt.
USCIS is actually required, by regulation, to search for themselves and recapture these past approved H-1B's each year, raising the H-1B cap for all H-1Bs for that year. However, in practice they do not take action because they lack the technological capability. Instead, they have been quietly approving new H-1B petitions for these "previously approved" foreign nationals under cap exempt status. If approved under cap-exempt status, USCIS allows the employee to use the full six years from the time of the new approval.
If you have a prospective employee with an approved, unused H-1B visa issued within the past six years, contact us for an evaluation at TheTeam@Huwelaw.com.