The H-1B Specialty Occupation classification allows U.S. employers to temporarily employ foreign professionals in positions classified as specialty occupations that require theoretical or technical expertise. Under this classification, the H-1B cap exemption allows certain U.S. employers that fit in specific categories to be exempt from the H-1B lottery altogether. This distinction allows cap-exempt employers to file H-1B petitions at any time of the year with start dates at any time without being restricted by the fiscal year limit.

• What Are the H-1B Cap Exempt Categories?

The H-1B cap exemption is extended to a limited group of employers that fit in specific categories. These specific qualifying categories are institutions of higher education as well as nonprofit entities related to or affiliated with an institution of higher education, namely nonprofit research or government research.

The H-1B cap exemption can be based on either direct employment by a cap-exempt employer that fits either of the two qualifying categories or if the beneficiary is “employed at” a qualifying cap-exempt entity where the beneficiary will spend the majority of his or her work time performing job duties that directly further the organizational objectives of the qualifying entity.

• How Do Non-Profit Organizations Qualify?

A qualifying non-profit entity must be related to or affiliated with a qualifying institution of higher education. The core requirement for a qualifying non-profit entity is that the non-profit entity must directly contribute to the research or education mission of a qualifying institution of higher education. This requirement can be fulfilled if the non-profit entity is connected to or associated with a qualifying institution of higher education through shared ownership or control by the same board or federation.

A non-profit entity can also qualify for H-1B cap exemption if the non-profit entity is operated by a qualifying institution of higher education or is attached to a qualifying institution of higher education as a member, branch, cooperative, or subsidiary. Exemption is also granted to non-profit entities that have entered into a formal written affiliation agreement with a qualifying institution of higher education that establishes an active working relationship between the non-profit entity and the qualifying institution of higher education.

• What Qualifies As An “Affiliation”?

An “affiliation” that qualifies for H-1B cap exemption specifically describes an active working relationship between a non-profit entity and a qualifying institution of higher education. This active working relationship must involve non-profit research or education that directly contributes to the mission of a qualifying institution of higher education. Consult with an attorney for more information on whether a certain type of arrangement would qualify as an “affiliation” for purposes of H-1B cap exemption.

• Which High Education Institutions Qualify?

Several key factors, including accreditation, establish a qualifying institution of higher education. A qualifying institution of higher education must meet the definition of the term in the Higher Education Act of 1965. A qualifying institution of higher education must admit as regular students only persons having a high school diploma, or the recognized equivalent of such a certificate.

A qualifying institution of higher education must also be legally authorized within a state jurisdiction to provide a program of education beyond high school curriculum. This educational program must award a bachelor’s degree or provide not less than a 2-year program that is acceptable for full credit toward such a degree. A qualifying institution of higher education must also be a public or other non-profit institution that is accredited by a nationally recognized accrediting agency or association or has been granted pre-accreditation status by such an agency or association.

If you’re looking to file for H1B Cap Exemption, our team can help. For personalized guidance and assistance, please feel free to reach out to our team at Meng Law Group. You may also contact us via phone at (626) 339-9363 or email us directly at info@menglawgrp.com.

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