Who Is Exempt From the H-1B Cap on Visas

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If you are interested in applying for an H-1B visa for temporary specialty workers, or in hiring H-1B workers, you may already be concerned about the annual numerical limit placed on new H-1B visas. Only 65,000 are allotted per fiscal year (October through October).

There’s always a rush as soon as U.S. Citizenship and Immigration Services (USCIS) starts accepting new H-1B visa petitions from employers, and the supply tends to run out quickly. If you don’t make the cut, you will have to wait until the following year’s supply of visas becomes available.

In fact, if you are a worker from a country other than Chile or Singapore, not all 65,000 visas are potentially available to you. Up to 6,800 visas are set aside each year for H-1B1 applicants under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused visa numbers from this pool are held over for H-1B use in the next fiscal year.

Qualifying for one of these limited numbers of visas is not your only hope, however. Certain types of employers, as well as certain workers with advanced degrees, are exempt from the H-1B cap. (This comes from the Immigration and Nationality Act (I.N.A.) at Section 214(g)(5)(A) and (B).) Important guidance was also provided in a June 6, 2006 memo from USCIS.

Job-hunting H-1B candidates might do well to search for jobs among employers in an exempt category. And if you’re an employer who is not in an exempt category, consult an immigration lawyer – creative strategies may still help you avoid the cap, such as having an exempt employer hire your intended H-1B worker part-time. Then you could hire the employee for the remainder of his or her time. (Just don’t try filing more than one petition for the same employee. That will lead to all the petitions being denied.)

Categories of H-1B Exempt Employers

The following types of employers can hire new H-1B workers without worrying about the annual numerical cap. Such employers may petition for an H-1B employee at any time during the year, even after the maximum number of visas given out under the H-1B cap has been reached.

  • institutions of higher education
  • nonprofit organizations affiliated with institutions of higher education, and
  • nonprofit research organizations or governmental research organizations.

We’ll discuss all of these below.

What “Institution of Higher Education” Means

The term “institution of higher education” is defined in Section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). Summarized, the definition covers institutions that:

(1) admit only high-school graduates or higher as regular students

(2) are legally authorized within the state in which they are located to provide post-secondary education

(3) award bachelor’s degrees or provide two-year programs that are acceptable for full credit toward bachelor's degrees, or award a degree that is acceptable for admission to a graduate or professional degree program

(4) are public or other nonprofit institutions, and

(5) are nationally accredited or have been granted preaccreditation status and provide satisfactory assurance that they will meet the accreditation standards within a reasonable time.

In short, any licensed institution above high-school level that awards degrees requiring at least two years’ work is likely to qualify. Possible examples include colleges and universities, teaching hospitals, or other educational organizations.

What “Nonprofit Organization Affiliated With Institutions of Higher Education” Means

USCIS’s regulations explain that a qualifying affiliation between the nonprofit (tax-exempt) entity and the institution of higher education can include shared ownership or control by the same board or federation, or attachment to the institution of higher education as a member, branch, cooperative, or subsidiary. See 8 C.F.R. 214.2(h)(19)(iii)(B).

Even if your nonprofit doesn’t have such an affiliation now, it may be possible to develop one in order to help you hire H-1B workers. Talk to an attorney for help.

If a nonprofit has, in previous visa petitions, proven to USCIS’s satisfaction that it was affiliated with an institution of higher education, it should submit evidence of this in any later H-1B petitions. Such evidence might include a copy of the previously approved petition (with attachments) and the previously issued USCIS I-797 approval notice.

What “Nonprofit Research Organization or Governmental Research Organization” Means

The USCIS regulations define this as either:

  • a nonprofit research organization that is primarily engaged in basic research and/or applied research, or
  • a U.S. government entity whose primary mission is the performance or promotion of basic research and/or applied research.

The regulations identify the purpose of basic research as “to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind.” For example, it may advance scientific knowledge without “specific immediate commercial objectives, although it may be in fields of present or potential commercial interest.” The acceptable fields of research and investigation include the sciences, social sciences, or humanities.

The regulations define “applied research” as directed at gaining “knowledge or understanding to determine the means by which a specific, recognized need may be met.” This may include efforts to discover “new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.” Acceptable fields of applied research include the sciences, social sciences, or humanities.

Exemption for H-1B Employees With Advanced U.S. Degrees

The first 20,000 H-1B applicants who have earned a master's or higher degree from a United States institution of higher education are exempt from the H-1B cap. After 20,000 of them have received visas, the rest will be counted against the 65,000 limit.

In order to take advantage of this particular exemption, be sure that the visa petition includes proof of the applicant’s degree, such as a copy of the worker’s final transcript; or a letter from the school registrar confirming that he or she met all of the degree requirements.

by: , J.D.

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