For H-1B to be CAP exempt the employer has to be one of the following:
- An institution of higher education.
- The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education. A nonprofit entity (including but not limited to hospitals and medical or research institutions) 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.
- The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the two for the purposes of research or education; further, a fundamental activity of the nonprofit organization is to directly contribute to the research or education mission of the institution of higher education.
- A governmental research organization whose primary mission is the performance or promotion of basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.
- A nonprofit research organization. A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.
[Note, Nonprofit organization or entity means the organization or entity is: (a) defined as a tax-exempt organization under the Internal Revenue Code of 1986, section 501(c)(3), (c)(4), or (c)(6); AND (b) has been approved as a tax-exempt organization for research or educational purposes by the Internal Revenue Service.]
Alternatively, an H-1B petition could be cap-exempt if:
- The petitioner will employ the beneficiary to perform job duties at a qualifying institution above (1, 2 or 3 that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution, namely higher education or nonprofit or government research; or
- The beneficiary of H-1B petition is a J-1 nonimmigrant physician who has received a Conrad waiver, or J-1 waiver commitment through interested government agencies (IGAs) such as HHS, Veterans’ Administration, Appalachian Regional Commission, Delta Regional Authority.
CAP Exempt petitions are generally complex and it is highly advised to consult with an experienced immigration lawyer. Please contact us today to schedule a legal consultation to discuss if your organization or the job could qualify as a cap-exempt H-1B. We also provide legal services to file the CAP exempt H-1B petiton.