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No H-1B for October 1st? No Problem! Exceptions Mean H-1Bs are Still Available for You

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It’s that time of year again—Fall is upon us, which means many lucky H-1B lottery winners will be assuming their new positions on October 1. Due to the record-breaking number of H-1B petitions received by the U.S. Citizenship and Immigration Services (USCIS) this year, chances are that you are not among them. Many individuals believe that this is the end of the road, absent another H-1B filing in April 2017. However, some little-known exceptions in the law could get you an H-1B now.
Most individuals are aware that certain organizations are exempt from the annual H-1B quota (i.e., the “cap”), meaning those employers considered to be an institution of higher education, or an affiliated or related nonprofit entity of such, can petition for employees at any time without regard to the H-1B cap. However, being employed by one of these qualifying institutions is not the only way to get a cap-exempt H-1B.
A separate option would be to have your cap-subject employer petition for you to work at an institution of higher education or a related or affiliated nonprofit entity (i.e., the “cap-exempt employer”). In this scenario, you are not working for the cap-exempt employer; instead, you are working for your cap-subject employer at the location of the cap-exempt employer. How does this work? Obviously, the cap-exempt employer has to be involved to allow this to occur. Besides that, the job duties you are performing have to “directly and predominately further the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution.” (See USCIS memo HQPRD 70/23.12). Thus, the H-1B petition has to establish a nexus between your work and the cap-exempt employer’s work.
Another option would be having the cap-exempt employer file a part-time H-1B petition for you and, once approved, having your cap-subject employer file a concurrent H-1B petition (i.e., a second petition to allow you to work for more than one company at the same time). In this scenario, your job duties at the cap-subject employer do not have to relate to the functions at the cap-exempt employer. You are just performing two separate jobs at different companies, but one of them happens to be cap-exempt.  
A third option is closely related to the second, but with an important distinction. Also, this option only works for entrepreneurs. Instead of using any cap-exempt employer to file your initial H-1B petition, you would file through a university innovation center. This type of innovation center, commonly known as a “Global Entrepreneur in Residence” (or GEIR) Program, aids entrepreneurs by sponsoring them on a cap-exempt H-1B. Once approved, the cap-subject entrepreneurial venture can sponsor the individual for a concurrent H-1B. Although GEIR Programs are a relatively new concept, they are starting to pop up throughout the U.S. to keep international talent in-country.
Are you interested in exploring cap-exempt H-1B options or alternative non-immigrant visas? The team at GoffWilson can review your case and determine the best fit for you. Contact our office today to discuss.

Filed under:H-1B Visa, Immigration Law