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2008 H-1B Series: Who are Quota Exempted Employers? Jian Joe Zhou, Attorney at Law Competition for the H-1B annual quota has been a challenging issue for many employers and alien professional workers. For the 2008 Fiscal Year starting October 1, 2007, more than 130,000 H-1B cases were filed in the first day that USCIS started accepting applications, far in excess of the 65,000 annual openings (including several thousand special treaty-based reserved numbers for citizens of Chile and Singapore) for regular H-1B status. In addition, the extra 20,000-space quota for alien beneficiaries who received advance degrees in the U.S. was used up a couple of weeks later. We expect to see similar or even more furious competition in the H-1B quota war for fiscal year 2009, for which USCIS will start accepting filings on April 1, 2008. However, immigration laws have set up some quota exceptions for certain types of H-1B petitions, relieving them from being counted toward the annual quota. In addition to those who are doing H-1b renewals and those who have been counted for the H-1B quota during the past six years, some employers, by nature of their business and incorporation status, are exempted from the annual quota for H-1B filings. In line with the broad goals of U.S. immigration policy, those employers are cap exempt which, in the view of the government, most directly contribute to the public good. Exemption is granted for “employment at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.” (Section 103 of the American Competitiveness in the Twenty-First Century Act) The language of this Congressional act leaves open some room for interpretation as to what type of employer qualifies for H-1B cap exemption. USCIS issued a memorandum on June 6, 2006 explaining its interpretation of this language, and we will rely on that memo to break down the standards for cap exemption.
This phrase is very important because, as interpreted by the USCIS, it qualifies for H-1B cap exemption any person who works at one of the qualifying institutions, even if that person is employed by a non-qualifying institution. USCIS understands that qualifying institutions may sometimes contract work out to for-profit or otherwise non-qualifying employers. It interprets Congress to mean that an alien may qualify for H-1B cap exemption of he/she works at a qualifying institution and provides “direct contributions to the United States through their work on behalf of [qualifying] institutions.” Thus, an otherwise capped employer can petition for a cap-exempt H-1B employee, but USCIS holds the position that “the burden is on the petitioner to establish that there is a logical nexus between the work predominately performed by the beneficiary and the normal mission of the qualifying entity.” Example: The Center for Disease Control signs a contract with for-profit Company A, in which Company A will provide biochemists for a two-year government-run research project. These biochemists will work at a government facility and be engaged in the same research as government employees. Company A can petition for a cap-exempt H-1B researcher to fill these positions. (Note: The employee of Company A need only work more than half of the time for the government to meet this requirement. She could work 60% of the time for the government and 40% of the time at Company A and still qualify for cap exemption.)
“An institution of higher education” is defined in Section 101 of the Higher Education Act of 1965 as an educational institution in any State that –
Example: Community College B offers a 2-year Associates degree. Credits from this degree can be applied toward a Bachelor’s degree at numerous public universities. Community College B qualifies to petition for cap-exempt H-1B employees.
USCIS instructs us to rely on the following definition: A nonprofit entity (including but not limited to hospitals and medical or research institutions) is an organization 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. A nonprofit entity is typically incorporated in 501(c) 3 status.
USCIS instructs us to rely on the following definitions:
Example: Institute D in a 501(c)3 non-profit organization that primarily conducts research on treatment of the AIDS as well as strategies of AIDS education and prevention. Institute D qualifies to petition for a cap-exempt H-1B employee. Please note, it has been a common misunderstanding (even by some USCIS officers) that all nonprofit institutions are exempted from the H-1B quota. This is not true. Only nonprofit organizations that are primarily engaged in research may be exempted from the H-1B quota. Conclusion: Cap-exempt H-1B status provides a great deal of flexibility to both the petitioning employer and the beneficiary employee. Cap-exempt H-1B workers can file at any time and begin working immediately. Moreover, cap-exempt employers are virtually assured a continuous supply of H-1B work without numerical limitation. It is important to remember, however, that a worker who wants to transfer from a cap-exempt employer to a non-exempt employer, if the worker had not been counted against the quota during the past six years, becomes subject to the visa cap, and all of the quota and timing issues that apply. Faced with enormous competition for a limited number of H-1B spots available this coming April, foreign workers can assure themselves legal status in the U.S. by accepting employment with an H-1B cap-exempt employer. Zhang & Associates, PC is always happy to handle your H-1B petition or inquiry regarding H-1B employment. --------------- --------------- At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation. Houston: 7324 Southwest Freeway, Suite 1088, Houston, TX 77074 In the moment of dynamics, our clients can always count on us. (02/01/2008) For more immigration news, please click here |
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