Introduction
The regulations provide for a cap of 65,000 on H1B applications approved every year. For several years now, the number of H1B petitions filed regularly reaches the maximum allowed cap within first few weeks, if not days. Even the additional H1B cap of 20,000 specifically for individuals with advanced degrees from US institutions fills up during the initial filing period.
Thus any foreign national who seeks an H1B visa faces significant difficulties under the current structure due to the limited numbers of available H1B slots.
Employers Exempt From H1B Cap – Is It possible?
While the regular H1B cap is currently set by statute at 65,000, there are several “exemptions” that raise the actual number of new H1B’s each year.
A clear understanding of the exemptions available can help employers and applicants increase their options to seek an H1B even when the H1B cap is exhausted.
H1B Cap Exempt Employers: Who Are they?
The H1B cap does not apply to organizations filing the H1B petitions if they are institutions of higher education (or related non-profit entities), non-profit research organizations, and government research organizations.
Many foreign nationals are not aware that these companies and organizations are exempt from the H1B cap and can sponsor an H1B visa any time of the year.
Let’s take a closer look at which institutions tend to qualify as H1B exempt employers.
IMPORTANT
Not every H1B petition is subject to the cap. There are two broad classifications of H1B cap exempt petitions.
- Petitions filed by H1B cap exempt employers
- Petitions filed on behalf of H1B cap exempt candidates
In this article, we take a look at the employers who are exempt from the H1B cap. Click here if you want to learn more about hiring H1B cap exempt candidates.
1. Institutions of Higher Education
H1B petitions filed by institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), are exempt from the H1B cap.
Under the definition, an institution of higher education is one which:
- Admits students who have completed secondary education;
- Is licensed to provide education beyond secondary school;
- Provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
- Is a public or non-profit institution; and is accredited or has been granted pre- accreditation status by a recognized accrediting agency.
DID YOU KNOW?
The H1B program is designed to allow US employers to hire foreign nationals to fill positions within the US workforce that are called “speciality occupations”.
My Case Scenario
Jane
Company A, a non-exempt employer, files an H1B for Jane Margret. Jane will be performing duties onsite at a qualifying government research organization (B), as part of a joint agreement between A and B. Company A supports the H1B petition with proof that Jane will work on a research project, performing duties similar to those performed by the employees of Organization B and that this work is related to Organization B’s mission. If B filed the H1B petition, the exemption would apply. Will Company A case fall under the exemption?
Yes, Jane would be exempt from the H1B cap because she will perform research duties that would otherwise have been performed by the qualifying institution’s employees in furtherance of the institution’s mission.
For more information keep reading.
2. Non-Profit Entities Related or Affiliated To A Higher Education Institution
H1B petitions filed by non-profit entities that are related or affiliated to an institution of higher education are exempt from the H1B cap.
USCIS states that it is sufficient that a non-profit entity is connected to an institution of higher education through shared ownership, control or be somehow attached to the higher education institution as a member, branch or subsidiary.
The 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 exempt institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.
It is important to note that public secondary schools do NOT qualify for H1B cap-exemption unless they have a formal affiliation agreement with a college or university.
IMPORTANT
The types of non-profits that qualify for this exemption have been construed narrowly.At present many non-profits (non-profit service, community, policy and arts organizations) that don’t have university affiliation do not qualify for the exemption from H1B cap.
Unless the non-profit employer is primarily devoted to research, or is formally affiliated with a university, it will not qualify as a cap-exempt H1B petitioner.
My Case Scenario
Ibrahim
Peerless Inc is a non-profit market research firm that would not qualify for the H1B exemption. They file an H1B for Ibrahim Muzzamil, one of the company employees. Ibrahim will be conducting market research onsite at a university that does qualify for the H1B exemption. He’d also be accessing a research tool available only through the university. However, the research is for the benefit of the petitioner’s clients, not the university. Would this H1B be cap exempt?
Ibrahim is physically working at an exempt institution, but the work performed is in no way related to the purposes of the qualifying entity. The employer, not the university, benefits from this work. Thus, Ibrahim doesn’t qualify for the H1B cap exempt.
3. Research Organizations
H1B petitions filed by nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C), are exempt from the H1B cap.
A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.
4. Third-Party Petitioners
H1B petitions filed by non-qualifying organizations may still be cap-exempt as long as the employee will be working “at” a qualifying institution.
In order to qualify, the H1B employer must be able to show that the employee will spend all or most of their time working at a qualifying institution (institutions of higher education (or related non-profit entities), non-profit research organizations, and government research organizations) AND that the employee’s duties and activities further the primary purpose or mission of the qualifying institution. There must be a “nexus” between the duties performed by the H1B employee and the mission or objectives of the qualifying institution.
Do You Qualify As An H1B Cap Exempt Employer? Confirm Your Eligibility
All of the criteria above must be met in order for an institution or an organization to qualify for H1B cap-exempt status.
It is extremely important that an employer or a foreign national who wishes to seek H1B status under a cap-exempt petition verify that the cap exempt H1B employers qualify under one of the three categories above.
In some cases such analysis will be fairly quick (e.g. recognized universities) but in many cases, especially with non-profit organizations, the analysis may be more complicated and takes careful assessment.
DID YOU KNOW?
Institutions and organizations qualifying for the H1B cap exemption must indicate that their H1B filing is cap exempt by marking Form I-129 with a “yes” answer to questions 1, 2, or 3 in Part C of the H1B Data Collection and Filing Fee Exemption Supplement
Conclusion
If you think that your organization or your potential employee qualifies for H1B cap exemption, we can help with the analysis so you can be sure that you qualify. Filing a petition without a clear answer on this question can lead to a waste of time, resources and money.
Fortunately, there are organizations that are exempt from the H1B cap.
Contact VisaPro if you have any questions regarding the H1B Cap, or need help in filing the H1B Cap Exempt petitions.
Our experienced attorneys will be happy to assist H1B cap exempt employers.
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