What is the H-1B category?
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.)
How long does the H-1B last?
H-1B status is given for a maximum of 6 years, in 3 year increments. Extensions past 6 years are available if the foreign national has reached a certain point in the permanent residence (green card) process in time.
What is this "H-1B cap"?
Under current law, there is a limit of 65,000 new H-1B visas that can be approved every fiscal year. In addition, another 20,0000 can be approved for holders of US Master’s (or higher) degrees. Free Trade agreements provide another 6 1,400 visas for Chilean nationals and 5,400 visas for Singapore nationals.
Who is exempt from H-1B cap?
An employer is exempt from the H-1B cap if it is:
1) an institution of higher education; or
2) a non-profit entity that is affiliated with an institute of higher education; or
3) a nonprofit research organization; or
4) a governmental research organization.
What is an “institution of higher education”?
USCIS (US Citizenship and Immigration Service) relies on the Higher Education Act for the definition of “institution of higher education.” This Act states:
“institution of higher education” means an educational institution in any State that
(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.
My proposed employer is non-profit, is it subject to the H-1B cap?
Maybe. Not all non-profit entities are exempt from the H-1B cap. The exemption only covers non-profits that are research institutions, or are formally affiliated with an exempt educational institution.
Is a person subject to the H-1B cap if they change from a cap-exempt to a cap-subject employer?
Yes. You could not start working for the new employer until you had H-1B status for that employer, unless you can use H-1B portability. There is a CIS letter from May 2007 stating that portability applies even when a foreign national is moving from a cap-exempt to a cap-subject employer, so that the foreign national can start working for the new employer, even if no H-1B numbers are available. However, the letter refers to a situation where the cap-subject H-1B was filed after 4/1 that year, so that theoretically the petition could be approved, just for a 10/1 start date. I don't think portability would apply if the cap-subject H-1B was filed at a time that it would be rejected as too early, like now.
Can a for-profit company ever use the exemption?
Yes. In addition to the concurrent employment described below, a non-exempt company (Company A) can hire a foreign national to work at a cap-exempt employer's worksite. Company A can claim the cap exemption if the foreign national will perform most of her job duties at a qualifying cap-exempt institution. In addition, the work performed must directly and predominately further the normal, primary or essential purpose, mission, objective or function of the institution.
Can a person work for a cap-subject and cap-exempt employer concurrently?
Normally, an employee who is subject to the H-1B cap cannot get H-1B approval if there is no H-1B visas available. However, it is possible to get approval of concurrent employment with a cap-subject employer, even if no cap number is available. There is a CIS memo from 2008 (Neufeld Memo) that specifically states that “…USCIS does not require that an alien who is cap-exempt...be counted towards the [H-1B cap] if they accept concurrent employment with a non-exempt employer.”
If the employee stops working for the cap-exempt employer, any subsequent H-1B petitions by the cap-subject employer will be denied unless there are H-1B numbers available.
What if the person works in Guam or CNMI?
If your work is performed only in Guam or the Commonwealth of the Northern Mariana Islands (CNMI), you are not subject to the cap. You must only work in CNMI or Guam, you cannot work elsewhere under this rule.
Where can I get more information?
Call immigration lawyer Elaine Martin at +1-214-329-4148 or write here.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.