What Employers can be eligible for Cap-exempt?
Tao Zhang, Esq.
Contrary to the general population’s expectations, when the U.S. economy remains sluggish and exhausted, the annual 2013 H-1B quota was used up within less than two and half months after the start of application day on April 1st. For those H-1B applicants that weren’t able to squeeze into this year’s quota will have to wait until next year’s April 1st for the annual 2014 quota. But for those H-1B applicants whose OPT is just about to expire, their only option probably would be to find a job with a cap-exempt employer. So what employers are cap-exempt? Recently, we have received a lot of questions regarding this area, and have found that there are a lot of misconceptions as well as some information are taken at face value. So, we have especially wrote this article for the purpose of clarifying what employers can be H-1B cap exempt, and also for the information of those who are considering of applying.
Misconception 1: All non-profit organizations are cap-exempt.
The truth is that not all non-profit organizations are considered cap-exempt. Only non-profit research organizations or organizations affiliated with universities or higher research institutions can be cap-exempt. Many public schools including elementary schools or high schools are cap-exempt because they have connections or are affiliated with universities or higher research institutions.
Example: We have successfully represented a K-6 grade public charter school for one of its foreign employees by submitting a cap-exempt H-1B petition. The evidence we used in support of the cooperation or affiliation between the chartered public school and universities or higher research institutions includes an agreement that provided the graduates of a nearby university with teaching opportunities in the public charter school.
Misconception 2: All government agencies are cap-exempt.
According to the law, only federal government agencies are cap-exempt. Also, not each and every federal government agencies are cap exempt. Only those government research agencies can enjoy being cap-exempt. For state government departments, even if its main focus is research, they still cannot enjoy being cap-exempt when it comes to H-1B visa petitions.
Example: We successfully represented a federal agency for one of its foreign employees by submitting a cap-exempt H-1B petition. The materials we used to evidence that this federal agency’s main purpose is research includes its organizational chart, research topics, research funds, research accomplishments, and etc.
Misconception 3: All for-profit organizations are subject to H-1B caps.
It is true that the majority of for-profit organizations/companies are subject to H-1B caps, but there are some exceptions: 1) A for-profit organization or company can be cap-exempt if its beneficiary mainly conducts research at an university, a higher research institution, or a research based non-profit organization or government agency.
Example 1: The real employer of the foreign employee, A, who is working at a hospital associated with a medical school, is a private, for-profit clinic. Even though A was not employed directly by the hospital, because A does medical research at the hospital, the private clinic is cap-exempt, and the H-1B petition it filed on behalf of A is not subject to H-1B caps.
Example 2: At the same hospital as the above example, a foreign manager B of a private restaurant was placed to work at the hospital as well. Because his job duties have nothing to do with the normal, primary, or essential purpose of the hospital’s medical research or with the mission of the hospital, the restaurant’s H-1B submission on behalf of this foreign manager is not qualified for cap-exempt.
2) If a foreign employee has two concurrent jobs, one employer is subject to cap while the other one is cap-exempt. If the employer who is subject to the cap files a H-1B petition for this said employee, the H-1B petition is cap-exempt as long as this employee still works for the employer who is cap-exempt.
Example 1: A foreign employee C working for a university with H-1B cap-exempt status found a part-time job at a private company. Because C is still working full-time at the university, when the private company files a H-1B petition for C, this 2nd H-1B petition is cap-exempt. Similarly, if C decides to change the full-time job at the university to be part-time while working as a full-time employee at the private company, the H-1B petition filed by the private company is not subject to H-1B cap.
Example 2: If the foreign employee C in Example 1 accepts the job offered by the private company and quits his current job at the university, then the second H-1B petition filed on his behalf by the private company is subject to the H-1B cap.
Attorney Tao Zhang is a partner at the FYZ Law Group LLP (www.fyzlaw.com). She has a lot of experience dealing with employment immigration and non-immigration visas. She has also successfully helped many people receive their H-1B application. If you are considering applying for H-1B, but is unsure if the application will be eligible for cap-exempt H-1B, please contact Attorney Tao Zhang at email (firstname.lastname@example.org); Tel: (630) 377-9060. She will evaluate your case for free.
FYZ Law Group LLP is a firm that provides a full range of immigration legal services to educational/research institutions, the private sector and individuals. Our lawyers have many years of experience in U.S. immigration legal services. We specialized in scientific/technological occupational employment-based immigration and non-immigrant visa applications such as: EB-1A, EB-1B and EB-1C, NIW, PERM, H-1B, L-1 and O-1. We have offices in the San Francisco Bay area, Chicago, and New York. We are one of the few U.S. employment-based immigration law firms across the U.S.
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