- Matthew Kolodziej
Alternatives to H-1B Roulette: CAP Exemptions
Given the increasing difficulty in hiring skilled foreign workers due to cap-subject H-1B visas, it is important to consider all immigration options, one being cap-exempt H-1B visas. Cap exemptions allow employers to file an unlimited number of H-1B petitions at any time. Here, different entities that qualify for this is explored and explained.
As the U.S. and world economies have improved U.S. employers have been filing more H-1B petitions than ever for highly-educated and skilled foreign workers. During the financial year (FY) 2016, according to the last U.S. Citizenship and Immigration Services (USCIS) annual report to Congress, a total of 398,718 H-1B applications were filed, and 345,262 were eventually approved. However, new H-1B applications are usually subject to a cap each financial year, limiting cap-subject H-1B visas to 65,000, plus an additional 20,000 for applicants with U.S. master’s degrees, for a total of 85,000. These applications are submitted about six months before the beginning of the next fiscal year, which means applications are usually filed around April 1st for capped H-1B visas that are allocated for the beginning of the fiscal year starting October 1st.
In recent years cap-subject applications have increased each year to the point where less than 50% of applications are accepted. For example, 199,000 petitions were filed for the FY 2018 annual cap, or more than twice the number of visas available, requiring that a random selection (the “H-1B lottery”) be performed to determine which petitions would be selected. Given that the most recent USCIS report shows that nearly 350 thousand H-1B visa petitions were approved during the 2016 financial year, although only 85,000 cap-subject visas were available, most of the applications must have been exempted from the annual cap. Cap exemptions allow employers to file an unlimited number of H-1B petitions at any time, even after the annual cap has been filed. How can employers and the skilled workers they want to hire qualify for these cap exemptions?
Institutions of Higher Education or Affiliated Entities
Colleges and universities are eligible to apply for cap-exempt H-1B visas, and so are their affiliated institutions. Affiliated entities must show they are operated by the college or university, or somehow connected to the college or university though common control or a common board or federation, or otherwise affiliated as a member of an organization, branch, or subsidiary. High schools and school districts may also qualify for the exemption if they are part of a collaboration with a college or university. Private companies may also qualify for the exemption of the employee will physically work at the institution of higher education or affiliated nonprofit entity and the work fulfills the purpose of the nonprofit.
Non-Profit and Government Research Organizations
Certain non-profits and government research organizations are exempt from the annual H-1B cap. The non-profit or government entity must be primarily engaged in basic or applied research. A private employer can show they are a non-profit usually by documenting their 501(c)(3) tax-exempt status. Note that the job doesn’t necessarily have to be primarily research related, but the employer must be primarily engaged in research.
H-1B employees may work for more than one employer at a time if each employer obtains an H-1B approval from USCIS. An employee who is already working for a cap-exempt employer may also obtain concurrent H-1B employment with a cap-subject employer, without applying for a cap-subject H-1B, and may continue to work for that cap-subject employer as long as the cap-exempt employment is maintained.
Nurses and J-1 Doctors
Doctors who have obtained a waiver of the 212(e) home residency requirement are eligible for cap-exempt H-1B visas. Nurses may also be eligible for cap-exempt H-1B visas if their job requires a bachelor’s degree and they work for a hospital that is affiliated with a university (see Institutions of Higher Education or Affiliated Entities above).
Employees that Have or Have Had a Cap-Subject H-1B Visa
One of the best ways for H-1B cap-subject employers to obtain the highly skilled talent they need is by hiring H-1B workers who are working for other cap-subject employers already or who have had cap-subject H-1B status recently. Even if the potential employee is not in H-1B status now, if they have had a cap-subject H-1B in the past six years they are still considered to have been counted against the cap and do not have to apply for the H-1B lottery again. As long as the employee has not used up all their H-1B time (the H-1B normally lasts up to six years), a new employer may file a new H-1B petition for them at any time and does not have to apply for the lottery on April 1st. The employee may even start employment as soon as the new H-1B petition is filed, without waiting for it to be approved, a policy called H-1B “portability”. However that it may be advisable, if there is any question about the approvability of the new petition, for the employee to wait for the approval of the new H-1B before giving notice to their previous employer.
Given the increasing pressure to find talented, highly qualified, and skilled workers in today’s economy it is essential to consider all the options when considering the opportunity to hire skilled foreign workers. Reviewing the nature of the employer’s business and the candidate’s immigration history is essential to taking advantage of all the immigration options in order to fill employer needs.
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