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Alternative Paths to H-1B

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On April 1st, the United States Citizenship and Immigration and Services (USCIS) began accepting H-1B petitions for the fiscal year of 2017, with the congressionally mandated cap on H-1B visas set at 65,000. In addition, there is an exemption from the cap for the first 20,000 petitioners who hold a Master's Degree or higher—making a total of 85,000 visas available. Like every year, the demand for an H-1B visa is very high, and the USCIS anticipates receiving more than the 65,000 petitions allowed within the first five business days of this year’s program (they received 235,000 petitions last year). The USCIS will notify the public when the cap is met, and if the agency receives an excess of 65,000 petitions during the first five business days, they will use a computer-generated lottery system to determine who is will be chosen to have the H-1B visas application processed.

With only a five-day window appearing annually, competition and anxiety increases yearly over valuable H-1B visas. Although it may seem that getting lucky in the H-1B visa lottery is the only path to employment for foreigners in highly skilled and highly specialized fields, there are some institutions that aren’t subject to the H-cap for the lottery. Furthermore, these cap-exempt employers also have the ability to sponsor an H-1B applicant at any time of year. The result of the cap exemptions is an increase in the total number of H-1B visas distributed, and a clearer pathway that does not rely on luck!

With a few exceptions, there are three types of institutions that are exempt from the H-1B cap:

1. Institutions of higher education that meet the United States code definition are the first H-cap exempt institutions.
2. The second exemption is for related and affiliated nonprofit entities of an institution of higher education. This exemption is most commonly applied to teaching hospitals.
3. Lastly, research organizations where that is either a nonprofit or part of the federal government, and is engaged in basic or applied research furthering the knowledge on a particular subject and ways to apply that knowledge to commercial pursuits.

While these are the three main employers to receive exemption from the H-cap, there are other, less common ways to achieve H-cap exemption. For example, an employer may petition for cap-exempt status if an employee will spend the majority of their time working at a qualifying institution.

With an improving economy, the stakes and competition for H-1B visas has never been higher. If you missed out on petitioning before the April 1 deadline, or would like to explore H-1B exempt institutions to see if you qualify for a visa through those channels, please contact us here. With over 30 years of experience, GoffWilson has an incredible depth of understanding of the ins and outs of the H-visa process and can help both employers and employees navigate the complexities of an H-visa exemption to ensure you make the best decisions for your personal situation in the pursuit of an H-1B visa. It’s what we do!
Filed under:H-1B Visa, Immigration Law