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difference between Cap count and Cap exempt petition

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  • difference between Cap count and Cap exempt petition

    Can anyone clearly explain the difference between Cap count and a Cap exempt petition?

  • #2
    When an employer files an H1B petition, it is either counted under the current year's annual cap (65000 limit) or not.

    Cap-exempt petition (not counted under cap) is possible if the beneficiary (employee) has had an H1B petition approved for him/her in the last 6 years. Extensions, transfers etc. are examples. Some employers such as universities and research institutes are also allowed to file cap-exempt petitions at any time.
    With a cap-exempt petition the beneficiary is eligible for 6 years minus the time already spent in the US in H1 or L1 status.

    Cap-subject petitions are only possible if the annual cap has not been reached. This can give the beneficiary a fresh 6 years of stay in the US. If the beneficiary has been in the US in H1 or L1 status in the past, he/she must spend 1 continuous year outside the US before fresh cap-subject petition can be filed.
    This is my opinion and not legal advice.