H-1B Cap Reached for 2015 but Visas Available for Cap-Exempt Institutions

April 10th, 2014

USCIS has announced that the cap has been reached for H-1B visa numbers for fiscal year 2015 and it will conduct a computer lottery to assign visa numbers to H-1B petitions filed the first week of April 2014.  For those beneficiaries subject to the H-1B cap, they must wait until next year to try again for a number.

The good news is that certain institutions are exempt from the H-1B cap.  These include nonprofit entities affiliated with institutions of higher education.  USCIS takes a very narrow view of affiliation, requiring joint control or ownership. However, it will give deference to prior determinations made since June 6, 2006, that a nonprofit entity is related to an affiliated institution of higher education, absent any significant changes in circumstances.

Therefore, such nonprofit entities can file H-1B petitions throughout the year for beneficiaries who would otherwise be subject to the H-1B cap.  These beneficiaries include those who have not been counted against the cap within the past six year (for example, J-1 physicians, F-1 students or H-4s changing to H-1B status).  They may start working in H-1B status as soon as the petition is approved.  Now that there is premium processing, that could be in as little as 2 weeks from filing the petition.

My office has extensive experience successfully filing such H-1B cap exempt cases.