H-1B Cap Exemptions

Some foreign workers are cap-exempt beneficiaries, and some U.S. employers are cap-exempt petitioners.

Foreign workers who already hold H-1B visa status in the U.S. are exempt from the cap if they were counted under the cap when their status was granted. This includes any worker already issued an H-1B visa abroad who has entered the U.S. on that visa to work for the sponsoring employer, and any worker who was granted a change of status to H-1B, evidenced by a Form I-797 approval notice with a replacement I-94 portion. It does NOT include workers who currently hold H-1B status in a cap-exempt job, such as a faculty or researchers at a university or government research institution, or physicians at teaching hospitals.

Workers in H-1B status who were cap-subject when they first obtained H status are exempt from the cap when seeking to extend their stay or change jobs. This even applies to workers currently outside the U.S., as long as they have held H-1B visa status during the past six years, have not exhausted the full six years, and have not spent a full year outside the U.S.

Certain non-profit employers are exempt from the H-1B cap, but not all types of non-profits qualify. The exemption only covers institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution. The types of non-profits that qualify for this exemption have been construed narrowly: At present, non-profit service, community, policy and arts organizations do not qualify for the cap exemption. Unless the non-profit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner.

Public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, and the offered job includes services under such an agreement, but many school districts do have such affiliations. The H-1B petition must include a copy of the affiliation agreement.

The H-1B cap exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.

Have more questions about H-1B cap exemptions? Contact Karin Wolman for a consultation today!

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