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H Cap Exemption

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With a cap of 65,000 on regular H-1B visas annually, the number of H-1B petitions reaches the allowed cap faster every year. Due to the limiting nature of the cap, and the interest in working in the United States, obtaining an H-1B visa is extremely difficult. However, there are some institutions that are exempt from the cap, increasing the number of H-1B visas—and helping an international student’s odds of obtaining a visa—as an employer can sponsor an H-1B visa applicant at any time of the year.

Below we will look at the three different types of institutions capable of being exempt from the H-1B cap:

1. Institutions of higher education are exempt from the H-1B cap. To qualify as an institution of higher education, the organization must fit the definition in the United States Code. Generally speaking, an institution of higher education requires secondary education for admission, has a program that leads to a bachelor's degree or higher, and has been accredited or has been granted pre-accreditation status.

2. Related and affiliated nonprofit entities associated with an institution of higher education also are exempt from the H-1B cap. Most commonly this exemption applies to teaching hospitals affiliated with university medical schools, but has also been approved for some primary and secondary teachers to continue with their teaching programs. Beyond teaching hospitals, qualifying for this exemption can be very difficult and it’s worth consulting with a professional before pursuing this avenue too far. If you are curious if you or your employer qualify for this exemption, contact us here.

3. Research organizations are the third employer to qualify for H-1B cap exemption. In order to qualify for the research organization exemption, the employer must either be nonprofit or part of the federal government. The organization must also be engaged in basic or applied research furthering the knowledge on a particular subject and discovering ways to apply that knowledge to commercial pursuits. Much like the related and affiliated nonprofit exemption, the research organization exemption can be tricky. Click here to consult our immigration attorneys about your potential research organization exemption.

Although these are the three main institutions that receive H-1B cap exempt status, an employer may petition for cap exempt status if the employee will spend all or a majority of his/her time working at a qualifying institution, and there’s a connection between the employee's work and the purpose of the institution.

Navigating the H-1B cap exempt qualifications is complex, difficult, and far too important to negotiate without professional help. Since 1982, GoffWilson has been providing highly specialized and personalized service to both employees and employers, and are pros in H-1B visas. If you have any questions or are in need of a consultation, contact us here. Immigration is our passion and what we do best!
Filed under:H-1B Visa, Immigration Law