The lesser-known H-1B visa alternative

The annual H-1B quota has now been filled and the US Citizenship and Immigration Service (USCIS) has processed the petitions and completed the lottery process.

This year, news reports show over 190,098 H-1B cap petitions filed during the April 2nd-6th filing period this year. New York Times reported that USCIS was bombarded with so many petitions that the annual cap of 85,000 was reached in just five days.

The visa program is also mired in increasing controversy, from the focus on its unfair lottery system (only 40-45 percent of these petitioners stand a chance of being randomly selected) to accusations that the program is causing American tech workers to lose their jobs.

Amid these reports, there is one category of H-1B visa that we seldom hear of: the cap-exempt H-1B visa.

Unlike the regular and the ADE (Advanced Degree Exemption) H-1B visas, the USCIS is still accepting petitions for cap-exempt H-1B visas.

ICYMI — MPI Study: Three times more H-1B visas were issued in FY 2016 than the annual cap of 85,000 due to approval of petitions from employers exempt from the cap. https://t.co/GIvHhcdbVX #h1bvisa

— NumbersUSA (@NumbersUSA) April 3, 2018

Cap-exempt employers refer to qualified institutions of higher education or research non-profit organizations, which can sponsor a H-1B visa at any time of the year and at a lower filing cost, according to Capitol Immigration Law Group.

The group refers to a June 2006 memo by USCIS as well as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) which provides guidance on which institutions qualify for the cap-exempt status.

According to these two documents, there are three types of employers who are cap-exempt:

“They are 1) an institution of higher education, 2) related or affiliated to a higher education institution nonprofit entity, and 3) nonprofit research organization or a governmental research organization,” wrote Dimo R Michailov, senior attorney and the founding member for the group.

For “Institutions of Higher Education,” it is defined by the Higher Education Act of 1965, which states the following criteria:

• admits students who have completed secondary education;
• is licensed to provide education beyond secondary school;
• provides educational programs for which the institution awards bachelors’ degrees or provides programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
• is a public or nonprofit institution; and
• is accredited or has been granted pre-accreditation status by a recognized accrediting agency.

Elementary or secondary schools, such as public or private schools, charter schools, etc do not fall into this category.

The Chronicle of Higher Education: Colleges’ Use of a Foreign-Worker Program Draws Mixed Reviews https://t.co/qLsqeTW7QC

— Harvard HR (@HARVARDHR) April 26, 2017

An”Affiliated or Related Nonprofit Entity,” refers a nonprofit entity that shares ownership, control or some form of attachment to the institution of higher education as a member, branch or subsidiary.

Finally, the “Nonprofit Research Organization or a Governmental Research Organization” refers to a nonprofit or governmental organisation that engages in basic and/or applied research.

An international student who seeks a cap-exempt H-1B visa is advised to verify whether their potential employer can be classified under any of these three categories, especially those which fall under the second and third categories, which are defined with more complexity and nuance.

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