H-1B visa Part 2: What are H-1B cap exemptions? September 10, 2006Posted by dsheen88 in H-1B visa, MyComments, Tips.
H-1B cap exemptions mostly applies or those employed or seeking employment at an institution of higher education, a related or affiliated non-profit entity, nonprofit research organization, or a governmental research organization. The petitioners or H-1B employers who are not a qualifying institution could also based the exemption on the fact that the alien will be performing all or part of his/her duties at a qualifying institution.
The USCIS has determined, based on Congressional intent, aliens that are not employed directly by qualifying institutions are exempt from the H-1B cap, provided that the petitioner (non qualifying institution) could show their employment promotes the purposes of the qualifying institution that they will be working at. Therefore, petitioners who are not a qualifying institution can be exempt from the H-1B cap if they show that a “connection” exists between the work performed by the alien employee and the work performed by the qualifying institution.
Here is an example: ABC Inc. is a for-profit marketing company, which typically is not a qualifying institution. ABC Inc. filed an H-1B petition on behalf of its employee after the noram cap was reached. In the petition, ABC Inc. indicated that the alien will be working at GOV LAB, a governmental research organization, which is a qualifying institution, to further the research organizations purpose by performing similar tasks to those that are preformed by the employees of the research organization. The alien employed by ABC Inc., a non-qualifying institution will be exempt from the H-1B cap, since he or she will be working at GOV LAB, a qualifying institution and performing the same tasks that the workers at the qualifying institution will be performing in the hopes of furthering the organization’s goals.
The USCIS also defined what is meant by related or affiliated nonprofit entity and nonprofit research organization or governmental organization. According the USCIS, in order to determine if the related or affiliated nonprofit entity is exempt, the entity must be “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.”
A nonprofit research organization as defined by the USCIS is “an organization that is primarily engaged in basic research and/or applied research.” A governmental research organization is “a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.”
In addition to theses types exemptions, the USCIS was instructed to set aside 20,000 numbers to aliens who are U.S. graduate with advanced degrees (such as MD, MBA, JD and Ph.D., etc.) on an annual basis. However, the 20,000 set aside for the current fiscal year been reached already (check out my previous blog post for more information re H-1B cap).