Cap-Exempt H-1B

1. An institution of higher education.
2. The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education if it satisfies any one of the following conditions:
   • A nonprofit entity (including but not limited to hospitals and medical or research institutions) that 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;
   • attached to an institution of higher education as a member, branch, cooperative, or subsidiary;
   • 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 two for the purposes of research or education; further, a fundamental activity of the nonprofit organization is to directly contribute to the research or education mission of the institution of higher education. A nonprofit entity may engage in more than one fundamental activity.
   • When a fundamental activity of a nonprofit organization is engaging in basic research and/or applied research, that organization is a nonprofit research organization. When a fundamental activity of a governmental organization is the performance or promotion of basic research and/or applied research, that organization is a government research organization. A governmental research organization may be a Federal, State, or local entity. A nonprofit research organization or governmental research organization may perform or promote more than one fundamental activity
3. A governmental research organization is a federal, state, or local entity whose fundamental activity is the performance or promotion of *basic research and/or applied research. A governmental research organization may perform or promote more than one fundamental activity.
4. A nonprofit research organization. When a fundamental activity of a nonprofit organization is engaging in *basic research and/or **applied research, that organization is a nonprofit research.

*Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities.

**Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. Both basic research and applied research may include research and investigation in the sciences, social sciences, or humanities and may include designing, analyzing, and directing the research of others if on an ongoing basis and throughout the research cycle.

[Note, Nonprofit organization or entity means the organization or entity is: (a) defined as a tax-exempt organization under the Internal Revenue Code of 1986, section 501(c)(3), (c)(4), or (c)(6); AND (b) has been approved as a tax-exempt organization for research or educational purposes by the Internal Revenue Service.]

Alternatively, an H-1B petition could be cap-exempt if:

1. The petitioner will employ the beneficiary to perform job duties at a qualifying institution above (1, 2, 3, or 4 that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution, namely higher education or nonprofit or government research; or
2. The beneficiary of H-1B petition is a J-1 nonimmigrant physician who has received a Conrad waiver, or J-1 waiver commitment through interested government agencies (IGAs)  such as HHS, Veterans’ Administration, Appalachian Regional Commission, Delta Regional Authority.
3. Concurrent H-1B employment in a cap-subject position of an alien that
   qualifies for an exemption shall not subject the alien to the numerical limitations of H-1B. When petitioning for concurrent cap-subject H-1B employment, the
   petitioner must demonstrate that the H-1B beneficiary is employed in valid H-
   1B status under a cap exemption, the beneficiary’s employment with the cap-exempt employer is expected to continue after the new cap-subject petition is approved, and the beneficiary can reasonably and concurrently perform the work described in each employer’s respective positions.

CAP Exempt petitions are generally complex, and it is highly advised to consult with an experienced immigration lawyer. Please contact us today to schedule a legal consultation to discuss if your organization or the job could qualify as a cap-exempt H-1B. We also provide legal services to file the CAP exempt H-1B petition.  

About H-1B Work Visa Program

The H-1B program allows organizations in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as physical sciences, engineering, information technology, medicine, social sciences, business administration, accounting, etc. You may be eligible for an H-1B visa to work for the business or an organization in the United States if the occupation that normally requires a bachelor’s degree or higher in a related field of study (e.g., engineers, scientists or mathematicians, researcher, etc.), and you have at least a bachelor’s degree or equivalent (based on education and/or experience) in a field related to the position.

Initial period of stay in the United States: Up to 3 years. Extensions are possible in up to 3 year increments. Maximum period of stay generally 6 years (extensions beyond 6 years may be possible).

Could an H-1B Visa work for you? Ask yourself the following questions to see if you might qualify:

• Do you have a bachelor’s degree or the equivalent (based on relevant experience)?
• Will you be working in a “specialty occupation?”
• Will you be earning a wage?

If you answered yes to most of the questions above, then you may likely qualify for an H-1B Visa.

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas (5000 out of these are allocated to professionals from Chile and Singapore) each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap (Cap Exempt). Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

H-1B Visa Classification will be granted to those who:

1. Will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation;
2. Based on reciprocity, will perform services of an exceptional nature requiring exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project or a co-production project provided for under a Government-to-Government agreement administered by the Secretary of Defense; or
3. Will perform services in the field of fashion modeling and who is of distinguished merit and ability.

What is a Specialty Occupation job to qualify for H-1B positon 

Specialty occupation: means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Often time, USCIS refers to Department of Labor (DOL)’s Occupational Outlook Handbook, among others, to assess whether a job normally requires a bachelor’s degree in a specific specialty or its equivalent for entry into the occupation in the U.S. However, the employer could provide various other sources of information and publications to make a case that the occupation requires theoretical and practical application of a body of highly specialized knowledge  and a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

What are the Criteria for H-1B petitions involving a specialty occupation work

(A) Standards for specialty occupation position. To qualify as a specialty occupation, the position must meet one of the following criteria:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

(B) Petitioner requirements. The Petition has to be filed a United States employer means which means a person, firm, LLC, partnership, corporation, contractor, or other association, or organization in the United States (or its agent) which:

(1) Engages a person to work within the United States;

(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and

(3) Has an Internal Revenue Service Tax identification number.

The petitioner shall submit the following with an H-1B petition involving a specialty occupation:

(1) A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary,

(2) A statement that it will comply with the terms of the labor condition application for the duration of the alien’s authorized period of stay,

(3) Evidence that the alien qualifies to perform services in the specialty occupation as described above.

(C) H-1B Wage Requirement: 

The H-1B required wage rate will be whichever is greater:

1. Offered wage to H-1B worker if no other employee for the position; or
2. Actual wage paid to the to all other individuals with similar experience and qualifications for the specific employment in question (DOL ETA Prevailing Wage Determination Policy Guidance_November 2009, provides guide about select right prevailing wage level), the following factors may be considered: Experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors); or
3. the prevailing wage (for example listed here, https://flcdatacenter.com/OesWizardStart.aspx).

The wage requirement includes the employer’s obligation to offer benefits and eligibility for benefits provided as compensation for services to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.

(D) Beneficiary qualifications for H-1B Specialty occupation work:

To qualify to perform services in a specialty occupation, the Beneficiary must meet one of the following criteria:

(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Equivalence to completion of a college degree. Equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:

(1) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training and/or work experience;(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);

(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;

(4) Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;

(5) A determination by the USCIS that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien’s experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

(E) Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term “abroad” refers to the alien’s last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.

(F) If applicable, license from the U.S. government for a release of Controlled Technologies or Technical Data to foreign persons in the U.S.

The Export Administration Regulations (EAR) (15 CFR Parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130) require U.S. persons to seek and receive authorization from the U.S. Government before releasing to foreign persons in the United States controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the United States–even by an employer–is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. Government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, H-1B1, L-1, or O-1A beneficiaries. The U.S. Government requires each company or other entity that files a Form I-129 to certify that to the best of its knowledge at the time of filing it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and determined whether it will require a U.S. Government export license to release controlled technology or technical data to the beneficiary. This process will take at least 30 to 45 days.

If an export license is required, the company or other entity must further certify that it will not release or otherwise provide access to controlled technology or technical data to the beneficiary until it has received the required authorization from the U.S. Government.

The technology and technical data that are, however, controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) and the ITAR’s U.S. Munitions List (USML). Learn more at International Traffic in Arms and the Commerce Control list regulations

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If you or your employer want to learn more about this topic or H-1B petition in general or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 202 600 7742, or email us at info@adhikarilaw.com