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Last Updated On: February 6, 2024 | Published On: November 22, 2022
When most foreign workers consider applying for the H-1B visa, their minds immediately turn to the regular and advanced degree quotas. While these two categories are of significant importance, they aren’t the only options available to qualified foreign workers. There are a number of scenarios that permit cap-exempt eligibility, which we will explore in this post, specifically focusing on nonprofits.
An organization may be considered to be a nonprofit if it has a relationship or affiliation with an institution of higher education. While this doesn’t mean that all organizations affiliated with institutions are necessarily nonprofits, or that such an affiliation is required to be a nonprofit, this is a good rule of thumb to consider doing more research into a potentially cap-exempt H-1B nonprofit sponsor.
The most straightforward way to discover this affiliation is if the organization has been granted tax-exempt status for educational or research purposes. Qualified employers under this category are also granted certain filing fee waivers.
The most common institutions are teaching hospitals that are affiliated with medical schools. This is because they usually have an agreement that allows students of the university to receive medical training and grant certain medical benefits to the faculty members of the school.
While other places like secondary or primary schools may also qualify as nonprofit entities, such cases are more likely to be investigated by the USCIS based on the strength of the affiliation they have with a qualifying organization.
Certain teachers are able to be considered cap-exempt depending on the school district that employs them. The USCIS lays out the requirements for a cap-exempt school district as such:
If you are currently a teacher or administrator employed under H-1B status for a cap-exempt district and wish to transfer, then your new district will need to file a transfer petition on your behalf. If your new district is not cap-exempt, then your registration will be entered into the lottery.
Some “for-profit” entities may also be permitted to file cap-exempt petitions on your behalf. These could be a consulting or contracting company that is willing to sponsor you so that you will be working exclusively for a nonprofit institution of higher education, a nonprofit affiliate of such an institution, or a nonprofit governmental research organization.
The H-1B cap-exempt category does not have a set quota or annual limit like the regular and advanced degree categories. Since it is unlimited and can be applied for at any point during the year it is highly sought after. However, there are certain criteria that must be met for approval to be granted.
If you previously were under H-1B status and are outside the country you may be able to have an employer file a cap-exemption for the rest of your allowed duration up to 3 years. In order to do so however you must show that you were on H-1B status in the country within the past 6 years but haven’t used up that entire time on H-1B status.
For example, Maria was employed on H-1B in the United States from February 2010 to December 2013. She would not be able to file a new cap-exempt registration because she hasn’t been in the country within the past six years. With that being said, she must have her registration submitted in the next regular lottery on April 1st.
Another way of going around the annual quote is through H-1B cap-exempt jobs. This entails having a cap-exempt employer file a petition on your behalf. There are specific types of organizations and employers who qualify for H-1B cap-exempt petitions. According to H-1B requirements, these employers include:
To avoid any confusion, USCIS defines a nonprofit research organization as one “whose primary purpose is to directly contribute to the research or education mission of the institution of higher education.” Moreover, it defines a governmental organization as “a United States Government entity whose primary mission is the performance or promotion of basic research or applied research.”
In the past, only nonprofit entities that were associated with the federal government were considered cap-exempt. Now, due to the changes made through the Federal Register’s Final Rule, the nonprofit cap-exempt employer can be associated with a state or local government organization.
The Final Rule also broadened the definition of a nonprofit organization by replacing the phrase, “primary purpose”, with the more flexible phrase, “fundamental activity”. Making this change allows H-1B nonprofit entities to qualify even if their primary purpose is not to contribute to research; it only needs to be a fundamental activity.
Colleges and universities are the most common type of not-for-profit institutions and those affiliated with these entities are typically medical labs, research units, and hospitals.
Below are some of the documents that can be used to demonstrate that the organization is a not-for-profit research organization:
Are you still unsure if your desired position falls under the regulations? Consult an H-1B transfer attorney to find out.
Yes, you may work at a cap-exempt job even if your petition was filed by an employer who does not qualify as cap-exempt. This is in line with a 2008 USCIS Memorandum Guidance Regarding Eligibility for Exemption from the H-1B Cap based on § 10 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).”
However, the requirement for this is that the specific job position must further the essential purpose, objectives, mission, or function of a qualifying cap-exempt institution or entity. A good example is an H-1B beneficiary employed by a non-qualifying cap-exempt private employer to work in a pharmacy located on a university hospital campus. However, it will not be enough to just work in that location, the specific job must be seen to be contributing significantly to the hospital.
If you are currently under H-1B nonprofit status, you are not counted towards the cap and can file cap-exempt H-1B petitions. This means that you can extend the period you remain in the U.S., can change your terms of employment, and file a transfer without being subject to the cap.
On the other hand, if an H-1B employee wants to port from a cap-exempt employer to a cap-subject employer, the employee will need to wait until the next H-1B filing window to be entered into the cap. The employee may also not be eligible to start working with the new cap-subject employer until the pending H-1B petition is approved.
If you attempt to use the portability rule to move from cap-exempt to cap-subject employer after the cap for that fiscal year has been met, the attempt will raise red flags with the USCIS. According to the memorandum, the USCIS will only approve such a petition if you (the beneficiary) were not responsible for terminating the cap-exempt employment.
To get the most accurate picture regarding your eligibility it’s best to consult an H-1B transfer lawyer or an immigration attorney.
The answer to this will depend on certain factors which include the applicant’s experience, background, as well as his or her readiness and commitment to job searching. The H-1B visa is the most competitive nonimmigrant work visa, which means you will likely have to be skillful in your field to land a position.
However, records are indicating that many institutions are successfully obtaining cap-exempt job visas for their qualified H-1B beneficiaries. For instance, data shows that between 2014 and 2016, Samsung Research America, Inc., Research Foundation of Cuny, Food and Drug Administration, Hhs, and General Electric Company Global Research Center got approvals for 251, 235, 187, and 178 H-1B cap-exempt visas respectively. So, if your cap-subject registration was unsuccessful or you are unable to wait for the next H-1B lottery window to open, you can look to obtain an H-1B visa through a cap-exempt employer.
Apart from your regular job searching skills, certain websites dedicated to nonprofit job vacancies can expedite your goal of landing a cap-exempt H-1B job. One of these sites is called My Visa Jobs, which has a list of all the H-1B cap-exempt employers and how they rank in terms of visa approval rates.
Once you find a job through this website, it is important to go a step further by checking with the employer to double-check their cap-exempt status. Guidestar.org and idealist.org are other websites that give you the database of many nonprofit organizations while governmentjobs.com has a list of government agencies that may be willing to sponsor a cap-exempt H-1B job.
*We assume no responsibility for the accuracy of these job posting sites. They are in no way affiliated to VisaNation.
There are many benefits associated with being considered cap-exempt as we briefly mentioned above. If possible, this route is a great way to get your first H-1B visa as it is not limited by the quota or any predetermined deadlines.
Also, you have the option to transfer to a new cap-exempt employer once you obtain your H-1B visa. You can find a list of cap-exempt employers and jobs by conducting a search online. There are a number of databases that are dedicated exclusively to this category.
However, if you plan to enter the U.S. through a cap-exempt employer and switch to a cap-subject employer, you will be subject to the cap. For this, you will need to have your new employer file a new H-1B petition in the next lottery and hope that your petition is selected.
Typically, when individuals contemplate H-1B cap-exempt jobs they automatically think they are limited to teacher positions or other collegiate roles. Fortunately, that’s far from the case. There are a number of positions within universities and colleges that may be applicable to you.
For instance, an H-1B cap-exempt employer may seek help in the IT department, finance department, hospital, or medical facility. Identifying a cap-exempt employer has become relatively simple with the number of online databases available which post H-1B cap-exempt jobs.
H-1B cap-exempt processing times may vary although on average regular processing takes anywhere from 3-4 months while opting for premium processing can shorten your petition’s processing time to 15 days. Learn more about H-1B transfer premium processing.
As mentioned, premium processing allows the processing time to be cut down to 15 calendar days for a cost of $2,500. Be aware that USCIS typically takes an extra 2 weeks to mail the paper approval notice. The 15 days begins on the day they received your petition. You will receive one of the following responses:
You will likely hear the words Portability Rule get thrown around and are wondering what it means. Under the H-1B Portability Provision, the intention is to offer protection for H-1B nonimmigrant workers who are in the U.S. so that they can start working with a new employer if the following conditions are met:
So basically it allows the H-1B worker who is working with one employer (with a valid LCA) to accept a job by the new employer who has filed the petition, even before it has been adjudicated. The H-1B worker does not need to worry about being out of status when changing to the new job.
If your H-1B visa application, either cap-subject or cap-exempt, was denied or you need an alternative route to working lawfully in the United States, the good news is that you have several options.
You can apply for other nonimmigrant work visas such as the O-1 and L-1 classifications. In fact, some of these visas are not subject to an annual cap like the H-1B is and can be applied for at any time of the year. However, it is important to know that the requirements for these visas may be significantly different from those of the H-1B visa. Therefore, you should work closely with your immigration attorney when pursuing new options.
Related Topics: H-1B Dependent Employer, H-1B for Nurses
According to the U.S. Department of Labor Wage and Hour Division,
“An exempt H-1B nonimmigrant is an H-1B worker who meets one of the following statutory standards:
The $60,000 minimum annual wage is for either full or part-time workers who receive hourly compensation or an annual salary. All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).
Summary of the Cap-Exempt H-1B Category
The H-1B cap-exempt category has:
However, the requirements to get into this highly sought-after category are high. If you think that your job or employer qualifies as cap-exempt, speak with a qualified immigration attorney to learn the next steps.
Choosing a qualified H-1B visa lawyer is an integral part of the process. VisaNation Law Group’s H-1B transfer lawyers have years of experience handling these sorts of cases and can help you file for regular or premium processing immediately.
Tags: H-1B cap
