I. INTRODUCTION:

Cap exempt employers are absolved from complying with the requirement that they compete for new H-1B visas available each fiscal year under the law. Immigration laws specifically created the following class of organizations who are exempt from the H-1B visa cap numerical limitations: 1) an institution of higher education; 2) a not for profit entity related or affiliated to an institution of higher education; or 3) a not for profit research organization or a governmental research organization.

II. INSTITUTION OF HIGHER EDUCATION – THE FIRST TIER OF H-1B VISA OF EXEMPT EMPLOYERS

Any accredited nonprofit college or university approved by the State to admit high school graduates and who awards a bachelor’s degree programs is a cap exempt employer. Institutions of Higher Education who fit this classical definition may apply for H-1B visas without being inhibited by any statutory numerical limitations.

III. AFFILIATED OR RELATED NON-PROFIT ENTITIES – THE SECOND TIER OF H-1B VISA EXEMPT EMPLOYERS

The rules on who is a “nonprofit entity affiliated or related to an institution of higher education,” thus is exempt from the H-1B visa annual numerical limitations, is more nebulous. The statute did not provide direction on what type of affiliation or relationship will give the not for profit organization the cap exempt status. In 2006, the USCIS issued a guidance memorandum providing more details regarding the level of such relationship or affiliation. The guidance memo stated that such organizations consist of:

A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

(Emphasis added). In order to be cap exempt, the USCIS memo explained, the nonprofit entity and the institution of higher education must:

1. Share ownership or control by the same board;
2. Have joint operation; or
3. Be a member, branch, cooperative or subsidiary to each other.

Following the issuance of these rules, case law decided in September of the same year by the Administrative Appeals Office (AAO) indicated that the standard for deciding which organization is a “related or affiliated nonprofit organization” is not as rigid as the USCIS had interpreted. In Re (name not provided) EAC 06216 52028, the AAO stated that a collaboration between the nonprofit organization and an institution of higher education may be sufficient to find that the employer is cap exempt. In other words, if the nonprofit agency has collaborative programs or projects with an institution of higher education, that such collaboration may be sufficient to cause the nonprofit agency itself to become cap-exempt. If you are working for a nonprofit agency that has some affiliation, collaboration or a relationship with an institution of higher education, you should contact the experienced attorneys of Shihab & Associates, Co., LPA in order to find out whether your case qualifies as a cap exempt case.

IV. NONPROFIT RESEARCH ORGANIZATION OR A GOVERNMENTAL RESEARCH ORGANIZATION – THE FOURTH TIER OF H-1B VISA CAP EXEMPT EMPLOYERS

Nonprofit research or governmental organizations are generally exempt without the need for much interpretation. The aforementioned USCIS 2006 guidance memorandum provided detailed discussion and description of such entities that may also be cap-exempt. According to the guidance memorandum the definition of nonprofit research and governmental research organizations is explained in the immigration regulations themselves as following:

1. A nonprofit research organization is mainly engaged in basic and/or applied research.
2. A governmental research organization is a US entity whose main mission is conducting or promoting basic and/or applied research.

V. CONCLUSION:

Avoiding the H-1B visa numerical cap is valuable after the cap has been reached in any federal fiscal year. Determining whether a particular organization is an H-1B visa cap exempt employer requires a study of the employer’s activities and relationships with other institutions of higher education. The Law Firm of Shihab & Associates, Co., LPA are experienced in these matters and have represented various H-1B visa cap exempt organizations including Colleges, Universities, Nonprofit organizations, and health care organizations.

How to Contact Us:

If you have questions about an H-1B visa cap exempt case or any other immigration process, please contact our experienced immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive, and innovative lawyers who can make your immigration experience pleasant and seamless.