What Does It Mean to Be H-1B Cap-Exempt?

November 27th, 2016

To be cap-exempt for H-1B visa petition purposes means that an H-1B petition won’t be subject to the H-1B cap and that the beneficiary can start working as soon as it is filed or approved. The H-1B nonimmigrant visa allows for foreign nationals with the requisite education to work in professional (specialty) occupations in the US.  It is the primary working visa for professionals in the US (others include E-1 and E-2s, L-1s and O-1s).

Every year, according to INA §214(g), there is a statutory cap of 65,000 H-1B visa numbers available to those with a bachelor’s degree and an additional 20,000 numbers available for those with a master’s degree or higher from the US. The earliest date to apply for one of these numbers is April 1st and USCIS has kept the filing window open for one week if there are more petitions than numbers.  These numbers run out quickly and in the recent past USCIS has used a randomized computer lottery to assign visa numbers to filed H-1B petitions.  Last year approximately 30 percent of petitions received a visa number.  Also, even if one receives a number, the beneficiary may not start working until October 1st of that same fiscal year.

However, if an H-1B petition is cap-exempt (not subject to the cap), then the beneficiary may start working when it is filed (or approved). The determination of which organizations and individuals may be cap exempt has been a challenging and esoteric exercise.  In the Department of Homeland Security’s (DHS) final rule “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” published on November 18, 2016, the DHS clarifies which petitions will be cap exempt.  The following is a listing of these cap exempt petitions and organizations filing such petitions:

  • Institutions of higher education;
  • Nonprofit organization related to or affiliated with institutions of higher education;
  • Government and nonprofit research organizations;
  • Beneficiaries who have been counted against the cap within the past six years;
  • Beneficiaries who are J-1 nonimmigrants and who have received a waiver under INA §214(l), such as working in health professional shortage areas);
  • Those working at cap-exempt institutions but whose petitioner is not cap-exempt; and
  • Those working at cap-exempt organizations with concurrent H-1B employment at cap-subject employers.

The greatest benefit provided for by the rule is in its broadening of the definition of a nonprofit entity being “related to or affiliated with an institution of higher education.” Under the old rule, this definition included (1) the nonprofit being connected to or associated with the institution of higher education through shared ownership or control by the same board or federation; (2) the nonprofit being operated by the institution of higher education; or (3) the nonprofit being attached to the institution of higher education as a member, branch, cooperative or subsidiary.   Also, USCIS has been following a policy that has allowed nonprofits to be treated as cap-exempt based on their affiliation with or relation to institutions of higher education if the nonprofit entity had a previously approved cap-exempt H-1B petition after June 6, 2006.

The new final rule expands the definition of “related to or affiliated with” to include where the “nonprofit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research and education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” The greater scope of the affiliation definition will unequivocally benefit many nonprofit entities, including health care facilities that are in desperate need of foreign medical residents, especially in medically underserved areas.

In addition, the final rule clarifies and adds additional requirements for the cap exemption for those beneficiaries who are working for cap-exempt employers and concurrently for organizations subject to the cap. It states that the cap-subject petitioner of the concurrent petition demonstrate that the beneficiary is currently employed at a cap-exempt institution, that the beneficiary’s employment with the cap-exempt institution is expected to continue after the new cap-subject petition is approved, and that the beneficiary can reasonably and concurrently perform the work described in each employer’s respective positions. The rule also notes that the validity period of the petition with the cap-subject employer cannot extend beyond the period for the cap-exempt employer.  Furthermore, the rule notes that if the beneficiary’s employment with the cap-exempt employer is terminated before the end of the validity period listed on the approved H-1B petition, the beneficiary who is concurrently employed becomes subject to the H-1B cap, unless the beneficiary was previously counted with respect to the six-year period of authorized H-1B status or another exemption applies.  Finally, the rule warns that if the beneficiary becomes subject to the H-1B cap that USCIS may revoke the cap-subject petition.

US Department of Homeland Security Publishes Regulations on High Skilled Foreign Workers

November 23rd, 2016

On November 18, 2016, the Department of Homeland Security published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories.  This final rule will become effective on January 17, 2017.  The rule is designed to provide greater certainty for US employers seeking to sponsor and retain immigrant and nonimmigrant workers who are beneficiaries of employment based immigrant visa petitions (Forms I-140) and greater stability and job flexibility for foreign workers so as to allow them to accept promotions and change positions with current employers, change employers and pursue other employment.

The following is a summary of some of some of these benefits:

  1. 10-day nonimmigrant grace periods: The final rule provides for grace period of up to 10 days  prior to the start and after the end of the authorized period for nonimmigrants in H-1B, O-1, E-1, E-2, E-3, L-1 and TN classifications.
  1. 60-day nonimmigrant grace periods: The final rules establishes a grace period of up to 60 consecutive days during each authorized period for workers in H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3 and TN classificationsThis grace period allows for these nonimmigrants to change employers or their status when their employment ceases prior to the end of the petition validity period.
  1. H1B extensions of stay under AC21: The final rule addresses extensions beyond 6 years and reaffirms extensions based on labor certification applications being filed by the end of the foreign worker’s fifth year in H-1B status or a Form I-140 immigrant visa petition being approved by the end of the foreign workers sixth year in H-1B status.
  1. H-1B portability: It confirms the existing practice of allowing foreign workers to begin employment with new H-1B employers upon filing of the petition and allows H-1B employers to file successive H-1B portability petitions (“bridge petitions”).
  1. Counting against the H-1B annual cap: The rule clarifies how the counting is done and method for determining whether a petition is cap-exempt.
  1. H-1B cap exemptions: It clarifies and improves the method for determining whether cap exempt and provides for a new basis of cap exemption based on an affiliation between a nonprofit organization and an institution of higher education.
  1. Protections for H-1B whistleblowers: The rule allows H-1B nonimmigrant workers who provide information to help investigations regarding alleged Labor Condition Applications (LCA) obligations to provide evidence showing that their failure to maintain H-1B status was due to extraordinary circumstances.
  1. Form I-140 petition validity: The rule clarifies the circumstances under which the Form I-140 immigrant petition for  alien workers remains valid even after the I-140 petitioner withdraws the petition or terminates business, including for purposes of H-1B extensions, H-1B portability and I-485 portability under INA 204(j).
  1. Establishment of priority dates: The rules states that priority dates are generally established based on the filing of certain petitions and applications (consistent with existing DHS practice).
  1. Retention of priority dates: The rule enhances job portability for workers who are beneficiaries of approved Form I-140s, clarifies which workers may retain priority dates and transfer those dates to subsequently approved I-140s.  The priority date will generally be retained as long as the original Form I-140 is not revoked based on material error; fraud or willful misrepresentation of a material fact; or invalidation or revocation of a labor certification application.  This allows certain workers to be promoted without losing their place in the line for immigrant visas.
  1. Retention of validity of employment-based immigrant visa petitions: The rules states that Form I-140 immigrant visa petitions approved for 180 days or more would no longer be subject to automatic revocation based solely on the withdrawal by the petitioner or termination of business.
  1. INA 204(j) adjustment of status portability: The rule allows certain workers who have pending Forms I-485 applications to adjust status to change employers or jobs without jeopardizing the approved Form I-140 petition on which they are the beneficiary.
  1. Eligibility for employment authorization in compelling circumstances: The rule would allow for such employment authorization for the principal beneficiary in E-3, H-1B, H-1B1, L-1 or O-1 status (and the spouse and dependents) of an approved I-140 and even when the Form I-485 application to adjust status has not yet been approved. Compelling circumstances must be demonstrated.
  1. Adjudication of employment authorization documents: The rule clarifies that USCIS no longer must adjudicate an employment authorization document (EAD) within 90 days.  However, USCIS will also allow those with timely filed EAD applications an automatic EAD extension of up to 180 days so long as the EAD renewal is based on the same category.