Starting January 17, 2017, more employers can apply for new H-1B employees regardless of the H-1B annual quota now that the USCIS has clarified and modified the H-1B cap exemption rules. Cap exemption has been around for many years but it has been a murky mess for many employers whose petitions were often rejected because of USCIS' inconsistent interpretations.
Now, the revised rule may expand the number of employers who are cap exempt, giving them greater access to H-1B workers. If you are an employer, you may qualify for cap exemption and can hire H-1B employees at any time of the year regardless of the H-1B cap if you are a:
–College, university, or postsecondary school that is an institution of higher education as defined by a specific section of the Higher Education Act of 1965. Generally, this means public or nonprofit institutions; therefore, for-profit universities, colleges, or postsecondary schools typically do not qualify for cap-exemption.
–Local, state, or federal government research institution whose primary purpose is research.
–Nonprofit research institution whose primary purpose is research.
–Nonprofit organization who is:
- Connected or associated with an institution of higher education through shared ownership or control by the same board or federation,
- Operated by an institution of higher education, or
- Attached to an institution of higher education as a member, branch, cooperative, or subsidiary.
–Nonprofit organization that has a formal written affiliation agreement with an institution of higher education and who can show that at least one of your fundamental activities is to directly contribute to the research or education mission of the institution of higher education. In the past, the USCIS inconsistently approved or denied H-1B petitions for employers who met similar criteria.
–For profit employer whose H-1B employee will spend a majority of work time at a qualifying cap-exempt facility performing job duties that directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution. For example, a doctor employed by a private practice will work at least 51% at a non-profit, teaching affiliated hospital performing duties that further a higher education, nonprofit research, or government research purpose.
Importantly, a nonprofit organization or entity is defined as a tax exempt organization under the Internal Revenue Code section 501(c)(3), (c)(4) or (c)(6), and has been approved as a tax exempt organization for research or educational purposes by the Internal Revenue Service. Government entities do not automatically qualify as nonprofit unless they are also organized as a nonprofit as defined in this rule.
And, as always, employees who currently hold cap-exempt H-1B visas may be subject to the cap if they seek employment with employers who are not cap-exempt under these rules.
This new rule opens the door for more employers to be eligible for cap-exemption. When considering the hire of an H-1B employee, employers should determine whether they are eligible for this benefit.
I hope this article helps you understand basic immigration requirements, but please don't consider it as legal advice or legal opinion about your specific circumstances. Immigration rules are complex so contact a qualified immigration attorney for qualified advice and guidance.
For legal advice and guidance for your unique situation, you are invited to schedule an immigration strategy session with me.
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