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Filing Cap-Exempt H-1B Petitions

Each year, the demand for H-1B visa continues to increase. In April 2013, the United States Citizenship and Immigration Services (USCIS) received approximately 124,000 H-1B petitions within the five-business day filing window. In April 2014, the number increased to around 172,500 petitions received within a similar timeframe.

This year, approximately 233,000 H-1B petitions were received during the first week of the filing period that ended on April 7, 2015. The number includes those filed under the 65,000 cap-subject petitions and the 20,000 advanced degree exemption.

With the dramatic increase in this year’s H-1B filings, the chance of employers getting an H-1B visa number for their prospective employees under the annual cap decreased to 36.5 percent.

On April 13, 2015, the USCIS conducted a computer-generated lottery process to determine which cases would be forwarded to the appropriate immigration service centers for adjudication and which ones would be returned.

The USCIS first used the lottery process to select the 20,000 petitions under the advanced degree exemption. Then, it randomly selected the 65,000 cap-subject petitions. Petitions under the advanced degree exemption which were not selected were also included in the lottery for the cap-subject petitions.

Approximately 148,000 petitions not selected in the lottery were rejected and returned with the filing fees. The historic number of H-1B filings this year is attributed to the growth of the U.S. economy.

Unfortunately, many U.S. companies would not be able to hire much-needed high-skilled workers this year due to the annual numerical cap which has remained unchanged for ten years. Many are hoping for Congress to finally address the issue.

In the meantime, the USCIS announced that it would continue to accept cap-exempt petitions.

H-1B petitions for new employment are exempt if the beneficiary will work at an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

In order to qualify as an “institution of higher education”, the institution must admit only high school graduates, is legally authorized to provide education beyond secondary education, provides bachelor’s degree programs or not less than 2-year programs that can be credited towards such a degree, is a public or nonprofit organization and accredited by a nationally recognized accrediting agency.

To be a related or affiliated nonprofit entity for purposes of the H-1B exemption, it must be connected or associated with an institution of higher education through shared ownership or control by the same board or federation; or be operated by the institution; or be attached to the institution as a member, branch, cooperative or subsidiary.

A “nonprofit research organization” is an organization engaged in basic research and/or applied research while a “government research organization” is a U.S. entity engaged in the performance or promotion of basic research and/or applied research.

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Also, a petition is cap exempt if the current H-1B worker has already been counted against the cap. These petitions include those filed for an extension of H-1B status; those that change the terms of employment of an existing foreign worker with the same US employer; those filed for H-1B workers who are transferring to another US employer; and finally those filed for current H-1B workers for a second H-1B position.

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