A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Wednesday, April 21, 2010

Exemptions from the H-1B Annual Quota

On April 8, 2010, the U.S. Citizenship and Immigration Services (USCIS) announced it would continue to accept H-1B nonimmigrant petitions subject to the FY 2011 cap.  For regular cap, USCIS had received approximately 13,500 H-1B petitions.  For master cap cases, the agency had received approximately 5,600 applications filed by individuals with advanced degrees.  While there are still unused visa numbers, it is always wise to file one’s H-1B petition as soon as possible.  It is also important to note that the following categories of petitions are exempted from the annual cap:
1)         Holders of US-earned advanced degree:  There are additional 20,000 visa numbers specifically created by Congress for these individuals.  The key is that the degree must be earned at an accredited U.S. institution and is relevant to the professional occupation.
2)         The Employer is an "Institution of Higher Education” such as a college or university:  This exemption is quite straightforward.  Many academic researchers, teachers and professionals qualify for this exemption based on their employment at an accredited institution of higher education.
3)         The employer is a non-profit organization affiliated or related to an Institution of Higher Education:  There are many such employers.  Many non-profit organizations such as medical clinics and community organizations are affiliated or somehow related to colleges and universities.  For examples, they may have internship programs for college students or offer an environment for students to practice their trade.  The USCIS has been quite reasonable with the meaning of “affiliated” and “related.”  The key here is to ask the employer the right questions to find out their relationship with colleges or universities.
4)         The Employer is a nonprofit research organization or government research organization:  For private organizations, proper document is needed to document the nature of the research activities being conducted.
5)         The H-1B employment is at an H-1B exempt employer:  This exception is not known by many applicants.  For many petitions, the H-1B employer is not itself an exempted entity.  However, by virtue of the nature of the employment, the H-1B beneficiary has to physically work on-site at an entity which is an exempt institution.  Again, some investigation is needed to ascertain eligibility for this exemption.  Many categories of H-1B workers including IT professionals may qualify for it.
6)         Applicants who are citizens of Singapore, Chile, or Australia:  Separate visa categories and visa quota are available for these individuals.  For Singaporeans and Chileans, there is the H1B1 visa category.  For Australians, the E-3 visa category is designed for them. These individuals are not subject to the general H-1B cap.
7)         Concurrent exempt employment:  For those applicants who are already working in exempt H-1B status, they are eligible to apply for concurrent non-exempt H-1B employment.  It is important for the applicant to maintain proper H-1B status at the exempt employment in order to continue working for the cap-subject employer.
8)        Applicants who were counted before: For H-1B applicants who were already counted once during the past six years, and who were absent from the U.S. for more than one year, may seek to use the “reminder” of the six-year maximum period.  These applicants may also elect to re-apply for a new six-year period of H-1B status (granted in three-year installments).  However, if the absence was less than one year, the applicant may only apply to reenter the U.S. based on the reminder of the initial H-1B status. 

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