H-1B Cap Exempt

H-1B Cap Exempt

What is a Cap-Exempt H-1B?

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. 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 or government organization

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.

Who are H-1B Cap Exempt Candidates?

h1b cap exemption lawyers

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 but you must be able to show that you were in status (in the country) in the past six years and haven’t reached your maximum duration of stay.

For instance, we once had a client who was employed in the U.S. from January 2003 to November 2006. He approached our office wanting to know if he would be eligible to file a new cap-exempt H-1B petition. Unfortunately, since he wasn’t in status the past six years he was required to file the next lottery season.

Requirements for Higher Education Institution

In order for a higher education 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 a licensed by the proper institution to provide education beyond secondary school
  • Offer educational programs which award bachelor’s degrees or min. Two-year educations towards a degree

H-1B Visa Non-Profit Requirements
Non profit message

In order to be considered a 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 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.

Identifying H-1B Cap Exempt Employers

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

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. Now we know that if Company Y filed that petition the exemption would be approved but if Company X files will they qualify for the exemption?

The answer is yes because she will be responsible for the same tasks that would have been performed at Company Y and it’s in accordance with that institution’s missions.

Premium Processing

Once you do identify an employer you can expedite the processes by opting for premium processing. While times may vary slightly, premium processing typically takes 15 days. Whereas 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. If your employer files your petition with premium processing and it is not chosen in the lottery, then all fees will be refunded to you.

If your petition is selected, then you will be able to start working no earlier than October 1st.

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

H-1B Cap-Exempt Transfer

There are alternatives if you cannot find a cap-exempt H-1B employer yet are currently on H-1B status. 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. In order for the H-1B visa holder to change employers, the new employer is required to submit an H-1B Visa Transfer petition with the USCIS. The H-1B visa transfer qualifications are as follows:

  • Must start employment 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 prior to 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 H-1B employer or leave of absence letter.

While it varies in some cases, processing for an H-1B transfer typically takes 4-8 weeks after the application has been submitted to USCIS. Other factors that affect the processing length is the location of employment and which USCIS processing center is responsible for the application.

Transferring to or From a 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 at the same time as all of the other applicants selected for that year, October 1st.

Selecting an H-1B Visa Attorney

Ready to begin the process of filing for an H-1B cap-exempt position? Our H-1B visa attorneys will take a thorough look at your case before making the necessary recommendations. Not only do we offer a competitive flat fee, but each one of our attorneys is experienced with filing petitions as well as submitting the appropriate documentation based on your case.

Fill out this form to schedule your consultation and begin the filing process.

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