What happens when you are a foreign national looking for a job and the H-1B visa has been met? You need to think outside the box and be strategic about your search. Here is a brief guide regarding H-1B cap-exempt sponsors.
This year approximately 2/3 of H-1B petitions were returned as innocent victims of the hated H-1B visa lottery. This leaves only current H-1B holders and candidates looking for H-1B exempt sponsors as those still able to get a new H-1B sponsorship between now and next April.
H-1B cap exemptions are based on determinations by the USCIS on the employment or an offer of employment in three categories:
1. An institution of higher education
2. A affiliated or related nonprofit entity
3. A nonprofit or government research organization
There has been a lot of confusion as to what entities qualify for this exemption, therefore we would like to give you a quick overview of the 3 organizational types that have cap exemptions:
1. An institution of higher education is commonly considered to be a college or university.
2. An affiliated or related nonprofit entity is an organization that is connected or associated with an institution of higher education. This is usually through shared ownership or control by the same ownership board operated by an institution of higher education.
3. A nonprofit or governmental research organization is an institution that is primarily engaged in basic research and/or applied research in different fields.
Here are two examples provided by USCIS to demonstrate how the exemption works. These examples should clarify how the organizations fall within the three aforementioned categories.
Example 1:
A medical fellow in pediatrics has been employed at a qualifying non-profit university medical center for two years in H-1B status. At the end of the fellowship, the doctor will become a member of Company C, a private pediatrics practice group which has its primary offices within the university medical center and predominantly trains medical students and treats patients in the medical center. The doctor will be doing exactly the same work that he did during his fellowship, including remaining on the university medical center’s faculty, but for reasons related to hospital billing practices and medical malpractice insurance requirements, his technical, and therefore petitioning employer will be the private pediatrics practice group.
In this scenario, the individual would qualify for an H-1B exemption because the doctor is working at an organization connected to the university. The doctor is performing the same work that he did while employed directly by the university medical center. The doctor remains on the university’s faculty and continues to train and educate students while treating patients at the medical center.
Example 2:
Company D, a for-profit market research firm that would not otherwise be a qualifying institution, files an H-1B petition on behalf of a direct employee. The H-1B petition states that the alien beneficiary will be conducting a specific kind of market research on-site at a qualifying university. In addition, the petition states that the university has a specialized research tool that can only be accessed from its facilities and that the alien beneficiary’s research will be conducted for the benefit of the petitioner’s clients and business, and not for the university.
In this example, the individual would NOT qualify for an H-1B cap exemption. The individual is only located at the university and there is no work relationship that connects the university to the work done by the applicant. The work done by the individual is solely for the for-profit company and not the qualifying institution.
These situations show us the distinct difference between what entities qualify for a cap exemption and what work relation is needed to show a relationship in cases of an affiliated or related organization to that qualifying entity. If you believe you qualify for an H-1B exemption or have any questions about the topics we discussed, please contact us at info@smalawyers.com for further information.
