The way the law is currently written, there is a maximum number of regular quota-based H1B visa applications that will be subject to approval in a calendar year. Recent experience shows that H1B applications reach their cap in less than a month. Even the subcategory of H1B visas set aside for petitioners with advanced university degrees from American colleges reach their allotted number very rapidly every year. Therefore, anyone who is interested in applying for an H1B visa faces a number of nearly insurmountable challenges.
Can Companies Be Exempt from the H1B Cap?
While it is true that regulations specify a maximum of 65,000 slots for H1B visas, there are certain loopholes written into the law that effectively increase the total number of approved H1B visas above the maximum threshold. To understand how to qualify for these cap exemptions, it is important to understand every nuance of the existing legislation.
Which Companies are Exempt from H1B Caps?
Any organization which is either an institution of higher education, a non-profit subsidiary of an institution of higher learning, a non-profit research organization, or a government research organization may be exempt from H1B cap restrictions. Unfortunately, many applicants are unaware that these organizations qualify for H1B cap limit exemptions, or that they may sponsor an H1B application at any time throughout the year.
To further understand which organizations qualify for an exemption to the H1B Cap, it’s important to understand how the legislation defines these entities.
Schools of Higher Education
As written in part 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), all schools of higher learning are exempt from H1B quotas. As defined, a school of higher learning is any institution that:
- Has a student body composed of individuals who have successfully graduated from high school;
- Holds a valid license to provide an education at a level higher than high school;
- Offers an education, the completion of which is rewarded with a degree, or credits that build towards a degree;
- Is a public and/or non-profit school;
- Has been given accreditation by accrediting authorities
Non-Profit Groups Attached to or Working in Conjunction With an Exempt School of Higher Learning
All non-profit organizations attached to, or operating in conjunction with a school of higher learning, are likewise exempt from H1B quotas. The relevant statute specifically addresses that any such exempt entity operated by or in conjunction with a school of higher learning is exempt so long as its core focus is to serve the parent exempt school. A good example of this scenario is a doctor’s’ practice group that is part and parcel of, as well as operating from, a college teaching hospital.
Organizations that Perform Research
As stipulated in federal law 8 CFR 214.2(h)(19)(iii)(C), both governmental research organizations and any group of researchers operating as a non-profit are to be given exemptions to the H1B quota. The law defines a private research group operating as a non-profit as any organization whose main activity is the implementation of basic research, applied research, or both. Likewise, a governmental research organization is defined identically, with the addition that it is operating as a lawful entity of the United States government.
Third-Party Applicants
One additional exemption to the H1B quotas is available to organizations who, while otherwise not qualifying for an exemption, can show that the prospective employee intends to be primarily engaged for an institution that does qualify for an exemption. To claim this exemption, a non-qualifying H1B exemption employer has to prove that their worker will be engaged either at a school of higher learning, a non-profit affiliated with a school of higher learning, a non-profit research group, and/or a government research organization OR that the primary duties and responsibilities of the worker will be focused on furthering the primary mission or occupation of an institution qualifying for an H1B exemption.
Things To Be Aware Of
In order for any organization, company, or institution to qualify for an exemption to the H1B quota, one of the criteria above must be satisfied. Therefore, for any foreigner, or prospective employer thereof, must demonstrate that they qualify for one of the exemptions as categorized above. Sometimes, applications for exemption will be processed very quickly, such as for universities of renown, but other groups, particularly those which operate as a non-profit organization, the application analysis period can be extremely lengthy.
Contact KPPB Law For Professional Assistance
If you believe that your company, or a foreign national candidate that you wish to hire, would qualify for an exemption to the H1B quota, we can help you provide the documents necessary to qualify. When you know how to file a proper petition to convince the government to provide a speedy answer to your exemption request, you can save time, resources and money. We are here to help you if you wish to successfully be declared exempt from the H1B quota. Please contact our firm if you have any questions about the H1B quota exemption system, or need assistance in filing your petition. Our team of seasoned professional lawyers will be more than happy to assist any employer seeking to qualify for an exemption to the H1B quotas.
Beeraj Patel, Esq.
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