How to Find a Cap-Exempt H-1B Job

Figuring out whether working for a particular H-1B employer can be brought about without worrying about the annual limits on certain H-1B visas.

By , Attorney · Capital University Law School

The H-1B visa is for "specialty occupation" workers. In order to satisfy the requirements of this temporary, nonimmigrant visa, the job must require at least a specific bachelor's (four-year) degree, and the worker must have a relevant U.S. bachelor's degree, foreign degree, or equivalent education and/or experience.

For most H-1B-qualifying jobs, there is a numerical limit, or quota, of 85,000 total H-1B visas approved each federal fiscal year. The quota creates a challenging timing issue surrounding when the prospective employer can submit its H-1B visa petition and when—or whether—the H-1B worker can begin employment.

But there's a way to avoid this whole problem: Find a job of a type that would qualify you for an H-1B visa, but is not limited by the 85,000 cap. This article discusses finding a job at a "cap-exempt" employer to avoid the quota and corresponding timing issue

Types of Employers Not Subject to H-1B Cap

The following types of workplaces can hire H-1B workers without worrying about the cap.

  • institutions of higher education
  • nonprofit entities related to or affiliated with institutions of higher education
  • nonprofit or U.S. governmental research organizations, and
  • organizations that require the H-1B employee to work at one of the first three categories of employers.

Determining whether one of these exceptions applies to your prospective employer might require some investigation. It involves looking into the nature of the employer and might also require some checking into the job location.

It's not likely that a job posting will contain any information about the employer's cap-exempt status, because most employers are not thinking about H-1B visa sponsorship when seeking to fill an open position. It therefore will be helpful to seek the advice of an immigration attorney who can assist you in determining whether the job will be exempt from the H-1B cap.

What Qualifies as Institutions of Higher Education for H-1B Cap-Exemption Purposes

To qualify as an institution of higher education, the organization must fit the definition in the United States Code (20 U.S.C. Section 1001(a)). This ordinarily means a college or university that requires secondary education or the equivalent for admission, offers at least a two-year program that leads to a four-year or higher degree, is a public or nonprofit private school, and has attained or is making satisfactory progress toward accreditation.

For established and recognized colleges and universities, such as the University of California, it's likely not necessary for you to investigate admission standards, degree programs, or accreditation status. For newly formed colleges or universities, particularly ones that offer online-only programs, however, it's important to make sure they meet the above criteria qualifying them as institutions of higher education.

What Qualifies as Related and Affiliated Nonprofits for H-1B Cap-Exemption Purposes

The second category of employers that is not subject to the H-1B cap is nonprofit organizations related to or affiliated with an institution of higher education, as defined in the first exception above. The most common example is a teaching hospital connected to a university medical school. Such hospitals normally are nonprofit organizations and typically have entered into extensive cooperative education agreements for university faculty members to have hospital privileges and for medical students to receive medical training at the hospital.

Another example that has had mixed results is a primary or secondary school. U.S. Citizenship and Immigration Services (USCIS) has approved some H-1B petitions for primary or secondary teachers and denied others. Such cases usually hinge on the affiliation requirement. In some cases, USCIS agreed that there was a qualifying affiliation; normally through university and school district student teaching programs; and in other cases denied the H-1B petition because the "affiliation" was too weak or not fully documented.

Beyond the teaching hospital example, it will take some research to determine whether this exception applies. First, the organization must be a nonprofit: that is, an organization that uses its earnings or contributions to achieve a mission or goal rather than transferring them to its owners as profit or dividends. Technically speaking, an organization cannot be considered a nonprofit until the federal government (through the Internal Revenue Service) has granted it tax exempt status, i.e. designated it as a so-called 501(c)(3), (c)(4), or (c)(6) organization, according to the relevant provision in the U.S. tax code. Examples of nonprofits include organizations with religious, charitable, scientific, literary, or educational purposes.

Second, the nonprofit must have a relationship to or an affiliation with an institution of higher education. This means there is common ownership or control of both organizations, or that the nonprofit is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. While some of the operative documents might be publicly available (perhaps on the organization's web site or on a state government website, most often the secretary of state, where legal entity records are maintained), it most likely will require further investigation to determine whether such a qualifying relationship or affiliation exists and to what extent it can be documented.

What Qualifies as Nonprofit and United States Government Research Organizations for H-1B Cap-Exemption Purposes

This third category of cap-exempt employers is research organizations that are engaged in basic and/or applied research to further the knowledge of a particular subject or find ways to apply new scientific knowledge to commercial pursuits. The research organization must be either a nonprofit or a part of the federal government.

Working "at" a Cap-Exempt Organization

As mentioned above, in addition to working for a cap-exempt employer, it's also possible to avoid the H-1B cap by working at a cap-exempt employer even while officially employed by a separate entity. This of course first requires demonstrating the cap-exempt status of the entity where the H-1B worker will be placed. Examples might include a pharmacist working for a private pharmacy or a health care provider working for a private practice group, both of which are located on a university hospital campus.

Hospitals are the simplest and most transparent examples of workplaces that might not be subject to the H-1B cap. Through further investigation, however, there are many other organizations that qualify. Peeling back the layers and identifying key documents to evidence the organization's status (such as its being an institution of higher education or nonprofit) and relationship (perhaps between a nonprofit organization and an institution of higher education) will permit filing an H-1B petition at any time.

Nonetheless, if the cap-exempt research reveals either that the organization does not fit within one of the exceptions or that there is no supporting documentation, the employer still has the option of pursuing a cap-subject petition for one of the 85,000 visas.

Getting Legal Help

It might require seeking the advice of an experienced immigration attorney to determine whether a particular job will be cap-exempt, and to assist in applying for it. Many H-1B employers either have immigration attorneys on staff (if they're large companies) or hire them for this purpose.

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