Cap Filled? It Might Not Matter
It's a sad story when the H-1B cap fills - both for employers and employees. When the economy was down, the cap filled slowly but in 2013 it filled up, for all intents and purposes, instan-taneously.
There is no easy way to extend status as a result of quota exhaustion. The uncertainty can be unnerving. Sometimes, though, an employer is cap exempt.
Exemptions to H1B Cap:
While the H1B cap is currently set by statute at 65,000, there are several exemptions that raise the actual number of new H1Bs each year.
Exemption for U.S. Master's Degree:
Under the law the first 20,000 H1B petitions that are filed on behalf of foreign nationals that have earned an advanced degree from a U.S. institution of higher education are exempt from the USCIS H1B quota. This essentially creates a separate pool of 20,000 additional H1B visa numbers each fiscal year that are available only to those foreign nationals who have earned a Master's or higher graduate degree from a US institution of higher education. It does not include foreign graduate degrees, and it does not include professional post-graduate certificate programs. You cannot obtain an educational equivalency for a foreign degree, or combine education and experience to try to meet this cap. They usually fill slower than the regular cap - at least until 2013.
Exemption for Cap-Exempt Petitioners
If the employer is:
1 - Universities (any school that is post-high school)
2 - Research institutions (non-profit only)
3 - Government research institutions
4 - Any nonprofit (whether research or not) that is affiliated with a university
then the H-1B cap does not apply. These employers can file for an H-1B any time of the year, and without limit. They can do so even if the cap has been filled, because they exist "outside the cap."
Let's look at each exemption in detail:
It is extremely important that an employer or a foreign national who wishes to seek H1B status under a cap-exempt petition verify that the employer qualifies as an H1B cap exempt employer under one of the four categories above. In many cases such analysis will be fairly quick (e.g. recognized universities) but in some cases, especially with nonprofit organizations, the analysis may be more complicated and take some care.
Think you might qualify? Or have another question? Use the form on the right to contact us.