Who is exempt from h1b visa cap

If you wish to receive a decision on your H-1B visa cap-exempt petition as soon as possible, your employer may submit a Request for Premium Processing Service utilizing Form I View More Videos. Carl was featured in the February edition of SuperLawyers Magazine. Decades of Immigration Experience Working for You. Green Cards through Employment. Not necessarily. The job itself must require a bachelor's degree or higher in a specialized field. You must then have that degree to qualify for H-1B status.

It may be particularly difficult to get H-1B status for certain types of jobs. Positions in sales can be difficult if they do not require special training. Some positions in the computer industry, especially computer programming, can be difficult because the minimum requirements for some computer-related jobs are not always well established. An attorney can advise you as to the applicability of an H-1B for a particular job.

Yes, the employer hiring an H-1B worker, must have documentation to prove, and then must certify to the U.

Department of Labor DOL that it will pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment. The employer must also certify that it is not displacing any U. The cap refers to the limit of H-1B visas allowed per federal fiscal year FY. A fiscal year begins on October 1st and ends on September 30th of the following year. Current regulations set the cap at 65, H-1B visas for the entire country.

Universities and related nonprofit entities, nonprofit research organizations and government research organizations are exempt from the cap. These employers are able to submit an H-1B application to the USCIS at any time during the year without concern for the fiscal year limit. However, a person who works for an H-1B cap-exempt employer who changes jobs to an employer that is not exempt may become subject to the H-1B cap.

There is also an exemption from the annual cap for the first 20, new H-1B beneficiaries who have earned a Master's degree or higher from a U. For employers who are subject to the cap and because the cap may be reached early every year , it is best to submit the H-1B application in April for the start of the new fiscal year on October 1 when the new batch of 65, H-1B visas become available.

It is important for an employer to understand that the H 1B is employer-sponsored, which means that they are responsible for submitting the petition to the USCIS.

As a prospective employee, you may want to consult with an immigration attorney about a particular position before your job interview to prepare for any questions the employer may have about your work eligibility.

However, most F-1 or J-1 students will find it advantageous to obtain Practical Training or Academic Training to begin working as soon as they are offered the job since cap subject employment may not start until October 1st, and since H-1B employment may not be possible due to the cap.

Department of State. If this two-year requirement does not apply, you are eligible for H-1B status if you meet other eligibility requirements.

In the foregoing sections, we will examine regulations and agency guidance developing the H1B cap exemption statute. In this section, we will examine the rules in detail for each important issue involving H1B cap exempt employers. In general, regulations relating to cap-exempt organizations are found in 8 C. Defined as a tax exempt organization under the Internal Revenue Code of , section c 3 , c 4 , or c 6 see 26 U. Has been approved as a tax exempt organization for research or educational services by the Internal Revenue Service IRS.

It is important to note that the relevant organization must both be defined as a tax exempt organization under 26 U. We have uploaded the most up-to-date version of 26 U. Under 8 C. Accordingly, we must look to the regulations. The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation; ii.

The nonprofit entity is operated by an institution of higher education; iii. The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or iv. The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

The same language is found in the fee waiver section of the regulations at 8 C. However, the DHS stated that it will continue to consider requests from government entities that are also organized as non-profit entities related to or affiliated with an institution of higher education. Such assessments for eligibility to file cap-exempt and fee-exempt H1B petitions will be made on a case-by-case basis. At 81 FR , the DHS explained that a non-profit entity relying upon a formal written agreement as evidence need not demonstrate the lack of ownership or control by the institution of higher education.

Under section g 5 B of the INA, a non-profit research organization or a government research organization may qualify for the H1B cap exemption as well as the fee exemptions in section c 9.

The definitions for non-profit research organization and government research organization are found in 8 C. There are subtle but significant differences between the requirements for non-profit research organizations and governmental research organizations. Accordingly, the ways in which a government entity may qualify for the H1B cap exemption are broader than the ways in which a non-profit research organization may qualify.

A key point in section g 5 of the INA is that the statute specifies an alien employed at or who has received an offer of employment at a qualifying institution, organization, or entity. The statute permits an alien who is employed by or receives an offer of employment from a qualifying institution, organization, or entity to be exempt from the H1B cap.

However, the USCIS has applied the statute further, also permitting aliens who are not directly employed by or who do not have an offer of direct employment from a qualifying institution to also be exempted from the H1B cap under certain circumstances. The pertinent regulation is found in 8 C. Under this regulation, an alien who is not directly employed by a qualifying institution will be qualified for an exemption from the H1B cap under the following circumstances:.