H1B Cap Exempt

This post will explore a range of H1B cap-exempt topics, including H1B cap-exempt jobs, requirements, H-1B cap-exempt employers, minimum wage, and H-1B cap-exempt employers, and more.

IMPORTANT UPDATE: USCIS closed H-1B Lottery registration on March 25 and has already started notifying employers or their attorneys whether or not they were selected. We have received several selections from the H1B registration we submitted. USCIS is expected to complete sending notifications by March 31. Those selected will have until June 30 to submit their petition with the necessary paperwork. Submission requirements are included in the H-1B cap Registration Selection notice PDF received by the selected petitioners or their attorneys. Although USCIS has not released the final number, the number of registrations for the H-1B lottery is expected to have exceeded the 85,000 cap amount.

What Does H1B Cap-Exempt Mean?

The regular H-1B visa cap dedicates 65,000 petitions to foreign workers with the required skills and qualifications. An additional 20,000 petitions are allotted to individuals holding advanced degrees at a master’s level or beyond. However, in some cases, H1B applications can be filed without going through the H1B cap.

An exemption category is available to U.S. employers that fall into one of the three exemption categories including:

  • Higher education institution
  • Non-profit organization associated with a higher education institution
  • Non-profit research organization  or government research organization
  • A for-profit company that seeks to hire an individual for specialty occupation services to be provided to any of the three entities listed above

It’s important to recognize that there are two overarching classifications of H-1B cap-exempt petitions. Those are petitions filed on behalf of cap-exempt candidates and those filed by cap-exempt employers.

For a higher education institution to qualify, it must meet the USCIS mandated criteria. According to Section 101 (a) of the Higher Education Act, an institution of higher education must:

  • Be considered a public or non-profit institution
  • Provide admission to students who have earned a secondary education
  • Be licensed by the proper institution to provide education beyond secondary school
  • Offer educational programs that award bachelor’s degrees or, at a minimum, two-year educations towards a degree

H1B Cap-Exempt Non-Profit Organization Requirements

To be considered an H-1B cap-exempt non-profit that is associated with a government organization or institution of higher education, it must:

  • Be a non-profit entity. (Non-profits that do not qualify: service, community, policy, and art organizations)
  • Be associated with the institution through shared ownership or board control

OR

  • Act as a branch, member of the subsidiary

USCIS defines a non-profit research organization as one that is “primarily engaged in basic or applied research.” The most common not-for-profit institutions are colleges and universities with affiliations to medical labs, research units, and hospitals.

A non-profit organization or entity is tax-exempt and either of the following under the Internal Revenue Service (IRS): section 501(c)(3), (c)(4), or (c)(6) (see 26 U.S.C. 501(c)(3), (c)(4), or (c)(6)). In addition, the non-profit should be approved as a tax-exempt organization for research or educational services by the IRS.

Here’s a case scenario to better illustrate the process:

Maria Gonzalez is trying to determine if she would be eligible for cap exemption under H-1B. Company X (non-exempt employer) decides to file an H-1B on her behalf. Maria will be responsible for onsite tasks at a university’s medical research facility (Company Y), as part of a joint agreement between Company X and Y.

Company X files the petition and submits proof that she will be performing tasks similar to those an employee of the medical research facility would be and in accordance with their ultimate mission. Therefore Maria qualifies for the exemption even if Company X files the petition because she would be performing tasks that fall under the exemption rules and follow Company Y’s mission.

h1b cap-exempt

Identifying H1B Cap-Exempt Employer

There are several resources to turn to when looking for an H-1B cap-exempt employer. You can look up employers and find databases that match you to a suitable H-1B cap-exempt employer. Often finding an employer is the most time-consuming process. Please note that we do not take responsibility for the information’s validity in the above database link.

Fortunately, the H-1B applies to a wide range of occupations including those in the sciences, engineering, business administration, and more. Just because you hold a bachelor’s degree does not guarantee that you’re eligible for H-1B status. The job itself has to require the degree and specialized skills you possess.

Who are H1B Cap-Exempt Candidates?

If you have previously been granted an H-1B cap exemption, then, according to USCIS guidelines, you will not be subject to the cap. If in the past, you were under H-1B status and are currently outside of the U.S., you might qualify to have an employer file a cap-exempt petition.

For instance, we once had a client employed in the U.S. from January 2003 to November 2006. He approached our office to know if he would be eligible to file a new cap-exempt H-1B petition. He will be able to recapture the remaining 3 years on the H1B without having to go through the lottery.

How Long is H1B Cap-Exempt Valid?

An employer may file a cap-exempt H-1B petition for an employee if they previously held H-1B status in the United States and they haven’t used their six years of status. The petition would be for the remainder of the employee’s allowed time in the United States.

For example, an employee named Juan Valdez was in the United States on H-1B status from February 15, 2003, to December 1, 2006. Would he be able to file for a new H-1B cap-exempt petition? Yes, as he has not used up his 6 years allowed on H1B.

Another example is with an engineer named Siddhartha. He was in the United States on H-1B status from November 3, 2010, to December 5, 2016. He would also not be eligible because he used up his six years, so he also would need to file in the next H-1B lottery season.

It’s worth noting that this six-year time period is only reset if you have been out of the United States for at minimum 1 year; then another H-1B can be filed under the quota.

Premium Processing

Once you identify an employer, you can expedite the processes by opting for premium processing. While times may vary slightly, premium processing typically takes 15 days, and the service fee is $2,500. In contrast, normal processing can take anywhere from three to four months. Note that if your petition is selected, your work start date is no earlier than October 1, 2021, just like any other applicant.

However, it is important to note that the premium processing feature only expedites the speed at which the USCIS processes your I-129 petition. It does not increase your chances of being selected for the lottery, and it does not make you cap-exempt. If your employer files your petition with premium processing and is not chosen in the lottery, all fees will be refunded.

To learn more about a scenario like this or something similar, you can consult a qualified immigration attorney specializing in cap-exempt H-1B situations.

H1B Cap-Exempt Transfer

An H-1B transfer allows individuals with H-1B visa status or previous H-1B visa status to transfer to a different employer.

As the H-1B visa holder, you do not have to receive permission from the former employer, though you should follow non-compete laws or any other contractual agreements with the employer. For the H-1B visa holder to change employers, the new employer must submit an H-1B Visa Transfer petition with the USCIS. The H-1B visa transfer qualifications are as follows:

  • Must start employment within 30 days on the date indicated on the H-1B Transfer petition submitted to USCIS.
  • You can begin working the day the employer receives the receipt from the USCIS.
  • If you have incurred a gap in employment (ceased employment with an H-1B employer before transfer), it is advised to file premium processing.
  • You must also provide pay stubs as evidence of employment; however, it is possible to submit other documentation, i.e., a letter from the H-1B employer or leave of absence letter.

While it varies in some cases, processing for an H-1B transfer typically takes four to eight months after the application has been submitted to USCIS.

Is the H1B Transfer Cap-Exempt?

Under the H-1B Portability Rule, an H-1B visa holder can change employers and start working for the new employer the day USCIS receives the new employer’s H-1B transfer petition. This new petition must be filed before the H-1B holder’s visa expires.

According to the U.S. Department of Labor, “The portability provision is intended to preserve the legal status of an H-1B nonimmigrant who is already in the United States. Portability allows the employed H-1B worker to enter into employment with a new employer provided that:

  • The new employer has filed a non-frivolous Petition for a Nonimmigrant Worker (Forms I-129/ I-129W) for the employment of the H-1B worker before the date of expiration of the worker’s authorized period of stay; and
  • The new employer has submitted, along with its petition, an unexpired, approved Labor Condition application (LCA) covering the same work that the individual is being hired to perform. The new employer may already hold an applicable LCA, or may have sought and received a new LCA in order to submit the petition.”

If you already have a cap-exempt job and want to transfer to a different job that also is cap-exempt, then you can file an H-1B transfer at any point and begin the new position after the H-1B transfer filing has been submitted to USCIS.

Another situation the H-1B Portability Rule would come into play in is when a cap-subject employee worked at a cap-exempt position and wanted to transfer to a new position. Then the new job would not be subject to the H-1B cap. Therefore the transfer could be filed whenever they wanted.

As you can see, the portability rule is quite complex, and if you’re seeking an H1B transfer, it’s highly advised to speak with one of our H1B lawyers first. The last thing you want to do is submit transfer documents and have them denied because of errors on your part.

Transferring to or From an H1B Cap-Exempt Employer

There are many instances of people wishing to transfer across employer exemption lines. While the advantages of entering the U.S. under a cap-exempt employer and transferring to a cap-subject employer seem good, the reality is that this is not a loophole that can be exploited.

If your original sponsoring employer is cap-exempt and you wish to transfer to a cap-subject employer, then the latter employer will need to file a cap-subject petition on your behalf. This is because you will no longer be a cap-exempt candidate and have not been counted against the cap.

You will be entered into the lottery based on your education level. If your petition is selected, you can begin working for the cap-subject employer simultaneously. It’s also important to be conscious of any contracts or agreements you’ve signed with non-compete clauses to avoid repercussions.

How to Apply for H-1B Cap-Exempt

Since cap-exempt visa applications can be filed at any point during the calendar year, you don’t need to abide by certain application windows (no filing deadline or limit to petitions accepted). After you’ve received a job offer and can demonstrate that it’s related to your educational proficiencies/degree, then the employer needs to submit the H-1B cap-exempt petition on your behalf. Their application will need to demonstrate that their job qualifies as cap-exempt and meets the aforementioned criteria. After it’s submitted, you’ll need to wait to hear from USCIS whether it’s approved. Once you receive the green light that it’s been approved, you can start working for the employer at any point after you have the valid visa.

Where Can I Find H1B Cap-Exempt Employers? 

A useful site is MyVisaJobs with their H-1B Visa Sponsor Database. On the right-hand side, when you are searching through the database, you can select “cap-exempt.” You can also filter things like industry code (NAICS), work city, visa rank, and job titles.

h1b cap exempt employer

What is the H1B Cap-Exempt Processing Time?

The H-1B cap-exempt processing time varies from case to case, and with the backlog of work at USCIS due to COVID-19, it’s really unclear the exact time processing an H-1B case will take. The time it takes the Department of Labor with the prevailing wage determination (if needed), the LCA, and USCIS’ processing can take six months or more. You can check USCIS processing times online.

One of the advantages to the H-1b cap-exempt processing time to regular processing time is cap-exempt status is not restricted by the H-1B lottery and season. For regular H-1B candidates, they have to spend most of February and March registering for the lottery, waiting to hear if they’re selected, file petitions if they are selected, and, if approved, can’t work until October 1st. H-1B cap-exempt jobs can hire foreign workers year-round, and those workers can start at any point.

h1b cap-exempt processing time

 

Premium Processing

Once you identify an h-1b cap-exempt employer, you can expedite the processes by opting for premium processing. While times may vary slightly, premium processing typically takes 15 days, and the service fee is $2,500. In contrast, normal processing can take anywhere from three to four months.

However, it is important to note that the premium processing feature only expedites the speed at which the USCIS processes your I-129 petition. It does not increase your chances of being selected for the lottery, and it does not make you cap-exempt.

To learn more about a scenario like this or something similar, you can consult a qualified immigration attorney specializing in cap-exempt H-1B situations.

H-1B 2021 Fees

Since the cost to register a petition into the lottery is so low, only $10 to be paid by the employer, we expect many entries into the lottery again this year. Below is a chart detailing a breakdown of the H-1B fees including those for H1B cap-exempt petitioners. To further illustrate what fees a company would be responsible for, here’s an example of one tech company’s fees.

FundTech Company has 65 employees, and 70% of their employees are on H-1B visas. Should they want to expedite their processing and choose premium processing, then they would pay the base fee of $460, the fraud fee of $500, Public Law fee of $4,000 (only applies to companies with over 50 employees and with over 1/2 of their workers on the H1B visa), the training fee ($1,500 if it applies) and of course the $2,500 premium processing fee plus any additional attorney fees incurred.

Our Attorney Fees for H1B 2021 Lottery

Since the lottery stages are tiered, and not all companies will be selected to file a complete H1B petition, we have outlined our attorney fees accordingly:

Tier 1: $550 for the initial registration process, which includes all preliminary case analyses required to file the case such as SOC, duties, documents, educational check, evaluations, if necessary, FEIN, etc.

Tier 2: $1,900 to be due if the case is selected in the lottery for filing. This tier includes all form/support letter preparation plus case filing within the timeframe.

Tier 3: $500–$1,500 will be the cost of a Request For Evidence (RFE) response, should one later be issued on the case.

Again, we need to reemphasize that all petitioners can complete the initial registration on their own accord; however, if the registration is done incorrectly, then that can lead to a petition being denied. After your petition has been chosen in the lottery, your company may hire our firm to complete the entire petition process. The legal cost for us to handle that $2,300, which includes responses on our behalf for any RFEs requested by USCIS and any H-4 applications  (for dependent members of H1B holders to come to the United States to join their relative). Individual RFEs can range between $500- $1600 depending on the case’s circumstances.

Frequently Asked Questions

Below are some common H-1B-related questions including where to find H-1B cap-exempt jobs, rules about traveling, filing questions, and more.

Can I qualify for an H1B if I’m currently a J-1 Exchange Visitor? 

Some J-1 Exchange Visitors cannot get H-1B status until their two-year, home-country physical presence requirement is met or has been waived by USCIS with a recommendation from the State Department. If this two-year home country requirement doesn’t apply to your situation, then you could be eligible for H-1B status assuming all other criteria have been met. The best person who can determine this is a qualified immigration lawyer.

What is the H1B cap-exempt minimum wage? 

According to the Department of Labor, the H1B cap-exempt minimum wage is at least $60,000 in the calendar year. If the employer is also paying for benefits, they can not be counted towards the $60,000. If the employee works full-time, but it is for less than a year, they must get a prorated share of the $60,000. For example, if they resign after working for only three months, they will still be due compensation of at least $15,000 for their work.

Is it possible to get an H1B while being out of the United States?

An employer can apply for your H-1B visa even while you’re living outside of the United States. After it’s approved, you need to get an H-1B visa stamp at the U.S. Consulate or embassy in your home county, and then you can legally enter into the United States.

Would I be able to switch jobs after I get an H1B visa? 

H-1B transfers are possible. If you decide you want to change employers after you get H-1B status, you’ll need the new employer to file for a petition on your behalf. The exception is if you’re cap-exempt and moving to another cap-exempt employer. The biggest benefit of the H-1B Portability rule is that it lets H-1B workers switch jobs without any risk of being considered “out of status.” What’s more, an employer can employ the foreign worker sooner than they normally would.

What is a specialty occupation?

A specialty occupation is defined as one requiring “theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific area of work.” Most commonly, these areas of specialty include the sciences, computer programming, and engineering. In 2020, the top H1B visa occupations, according to myvisajobs.com, were software developers, computer analysts, operations research analysts, mechanical engineers, accountants and auditors, financial analysts and statisticians, and database administrators.

Can my wife/spouse and children get a dependent visa after I’m approved on H1B? 

By law, an H-1B holder’s spouse and dependents, children under 21 years old, can apply for H-4 status. In certain cases, H-4 holders can also get the ability to work.

Does my employer have to pay me a minimum salary?

There is a minimum salary your employer must pay you as an H-1B worker. The wage is established and certified by the Department of Labor’s prevailing wage or the employer’s proposed wage, depending on which one is higher. The employer also enters this wage on the LCA form. Additionally, the employer must indicate that by hiring a foreign worker they are not displacing U.S. applicants.

Can I file the H1B application by myself if I don’t have an employer yet? 

You cannot file it. Only the U.S. employer can file on your behalf.

I’m in the U.S. on an H1B visa, and it just expired. What do I do? 

There’s a distinction between your visa stamp and your immigration status in the United States. Your immigration status dictates how long you can legally remain in the United States while your visa is simply a travel document. If the visa found in your passport expires, that doesn’t necessarily mean you have to pack your bags and leave the country right away because your legal status depends on the expiration date of your I-94 card. As long as your I-94 is valid, then you can continue working in the U.S. for your H-1B sponsoring employee. If you are outside of the U.S. and the visa in your passport expires, then you should go to your U.S. consular to apply for a new H-1B visa.

Can I extend my H1B past the six-year max? 

There are certain situations where you could extend your visa past the six-year limit, and those include if your PERM Labor certification or I-140 was filed at least 365 days prior, then you could get an H-1B extension in one-year increments. If an I-140 was approved, an extension could be obtained in three-year increments assuming the priority date isn’t current.

Am I allowed to travel while I have an amendment pending on my H1B?

You can travel with it pending as long as there is a valid H1B visa stamp and approved petition ready for your reentry. As a safeguard, take the amendment receipt notice with you on your travels in case of any issues at reentry. If you’re traveling and you see that your amendment has been approved, then it can be forward to you by your employer, and you can present it at the port of entry. Due to the current travel restrictions caused by the pandemic, it may be wise to consult with an H1B lawyer before traveling without an approved H1B amendment.

Can I get premium processing after filing the H1B? 

Yes, you can select premium processing while you are filing or, at a later time, upgrade to it after getting the receipt notice. The 15 days guaranteed processing period begins when USCIS receives Form I-907, Request for Premium Processing Service. Within that period, USCIS will either approve, issue a denial notice, notice of intent to deny, or a request for evidence for your case. If they request you send additional documents and evidence, then a new 15 calendar period will begin when they receive the response to the RFE.  The cost for premium processing is $2,500.

Does premium processing make me cap-exempt? 

No, it does not.

Can any non-profit organization sponsor me? 

To qualify as an H-1B cap-exempt non-profit research or government research organization, the organiztion must meet the definition of a non-profit entity and its requirements:

  • Connected or affiliated with an institution of higher learning via shared ownership or control by the same board.
  • Completely operated by the higher learning institution
  • Connected to higher learning institutions through the non-profit being a member, subsidiary, branch, or cooperative.
  • Must have entered into a contractual agreement with the institution that establishes a relationship between them (the non-profit) and the institution for the purpose of education or research.

More information regarding the specifics of a non-profit can be found here.

Do cap-exempt employers pay the ACWIA fee for H1B petitions? 

No. Cap-subject H1B employers would be required to pay the ACWIA education and training fee, cap-exempt employers like non-profit research organizations, primary or secondary educational institutions, non-profits related to clinical training programs, and those related to an institution of higher education do not need to pay this fee. Moreover, according to USCIS, the ACWIA fee is also not required when:

  • “A petitioner files its second or subsequent request for an extension of stay with the same employer for a foreign worker;
  • A petitioner files an amended petition that does not contain any requests to extend the validity of the petition it seeks to amend; or
  • A petition is filed solely to correct a USCIS error. However, to be considered exempt from the ACWIA fee, such petition may not contain any requests to extend the validity of the petition it seeks to correct unless the USCIS error involves the validity dates.”

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