Know the Law: Several Ways to Qualify for a Cap-Exempt H-1B Visa

Shiva Karimi
Director, Corporate Department, Immigration Practice Group and Managing Director Boston Office
Published: Union Leader
February 15, 2016
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Q. How can I qualify for a cap-exempt H-1B visa?

A. There is a dire shortage of H-1B work visas. U.S. companies need skilled workers by the hundreds of thousands, but there are only 65,000 H-1B visas available per year. There are various alternative visas, as well as exemptions from the H-1B cap. Employers often do not consider the possibility of a cap-exempt H-1B, which, if applicable, may provide an excellent solution.

If an individual qualifies for an H-1B that is exempt from the cap, then a visa may be obtained anytime. The most common situation where an H-1B visa is cap exempt is where the petitioning employer is a qualifying institution of higher education or a non-profit or governmental research institution. Because these types of organizations provide direct benefits to the United States, Congress provided cap exemptions to workers who provide contributions to these entities.

A creative use of this exception for cap-subject entities is to hire an employee who holds a cap-exempt visa with one of these organizations. If any employee of a cap-exempt organization wishes to concurrently obtain an H-1B visa to work for a cap-subject entity, he or she will not be counted towards the cap.

Another way for cap-subject organizations to obtain a cap-exempt H-1B is by conducting work that falls in the cap-exempt category. Where an individual works for an entity that is not exempt, but performs work that is directly and predominately related to, and in furtherance of, the purpose of a qualifying higher education or nonprofit or governmental research institution, then a cap-exempt H-1B visa may be available.

These cap exemptions, as well as alternative visa types, should always be considered when employers are working to maintain employment authorization for foreign nationals who are skilled and valuable employees.