Immigration Solutions has been recently inundated in regard to questions pertaining to cap exempt H-1B employment from its clients and readership. As a result of this, we've decided to address your questions with the writing of this article. We trust that you will find it useful and informative.

Are you an employer or staffing company searching for a way to solve the H-1B cap (quota) problem? At the present time, due to quota limitations and more demand than supply, you are restricted to filing in early April for H-1B visas for your critical H-1B professional employees who, if they win an H-1B visa in the lottery, can not start employment until the following October 1st, at the earliest. This unavailability and timing problem makes it very difficult to plan for the employment of H-1B workers.

If the petitioning employer is an institution of higher education or a related or affiliated nonprofit entity or a nonprofit or government research organization, then the H-1B cap does not apply. What is generally not widely known is that the United States Citizenship and Immigration Services ("USCIS") has interpreted the cap exemption in such a manner that widens the scope of the cap exemption. Specifically, USCIS will allow, subject to certain restrictions, an employer who is not cap exempt to petition for its H-1B employees who will perform their duties at a cap exempt institution. Such employers are known as third party petitioners. The intent of Congress was to ensure that qualifying cap exempt institutions have a continuous supply of H-1B workers without quota limits.

Pursuant to the broader interpretation, the USCIS will allow third party petitioning employers to claim the cap exemption for their H-1B employees if the employees will perform job duties at a qualifying cap exempt institution that directly and predominately furthers the normal, primary or essential purpose, mission, objectives or function of the institution, namely, higher education or nonprofit or government research. If the petitioning employer is not itself a qualifying cap exempt institution, the burden is on the petitioning employer to establish a logical nexus between the work performed predominately by the employee and the normal, primary or essential work performed by the qualifying institution. Essentially, the third party employer's employee would be cap exempt if he was performing duties that would or could otherwise be performed by employees of the qualifying cap exempt institution in furtherance of the qualifying institution's primary mission.

It should be noted that it must still be proven that the job offered is a specialty occupation in order to qualify for an H-1B, i.e., the position requires a minimum of a 4 year baccalaureate degree or the equivalent. This will be an issue for registered nurses since the USCIS takes the stance that the position of registered nurse generally does not require a 4 year baccalaureate degree. Registered nurses in more complex positions may be able to qualify.

In summary, cap exempt status, whether it is by working for a cap exempt employer or for a third party employer at a cap exempt institution, provides the advantage of filing at any time without regard to the quota and affords much more flexibility for planning and staffing purposes.