Strategies To Avoid the H1-B cap
As many are painfully aware by now, there is a numerical limit or "cap" on the number
of h1b visas that can be issued every fiscal year by USCIS. In recent years, this has
caused many applications to be rejected even if the h1b beneficiary was otherwise
qualified, and generally caused uncertainty and timing issues in securing h1b visas.
However, not all h1b visa applications are subject to the cap.
Candidates who will be working for an Institution of Higher Education (for example a
U.S. College or University) or a "related or affiliated entity" or for nonprofit research
organizations or governmental research organizations are not subject to the h1b visa
It is important to note that USCIS has so far taken a fairly liberal view of what
constitutes an "affiliated entity" for h1b visa purposes. This opens the possibiltiy for the
right candidate to apply for a cap-exempt H1B visa, simplifying the process and
avoiding the h1b rush at the beginning of the filing period. It also substantially
enhances the chances of approval and makes it possibly to strategically plan forh1bB
filing irrespective of the much dreaded October/April time frame (see our article on h1b
visas in general).
For example, many medical doctors who come to the U.S. to perform Graduate
Medical Studies (fellowship and residecy) could arguably qualify for cap-exempt h1b
visas if they were to be employed by a Hospital or other medical institution affiliated
with a U.S. University, as it is often the case. Another example would be an associate
professor coming to the United States to teach or perform research for an nonprofit
academic institution (again a U.S. College or University, or an affiliated nonprofit
Yet another category of petitions exempt from the h1b cap are those where the
beneficiary has been previously counted towards a non-cap exempt h1b position in
the six years prior to the filing. While this scenario typically occurs upon request for a
three-year extension, the law has been interpreted to allow new employment and a
change in employment petiiton to be classified as cap-exempt when these conditions
If you think you are qualified to apply for a h1b visa not subject to the h1b cap, or if you
need help in determining whether the h1b cap applies to you, please contact our office
to request a telephone or personal consultation.
Law Offices of Giuseppe Scagliarini
|Giuseppe Scagliarini, Esq.
37 Harrison Avenue
Newport, RI 02840