Tips on by-passing the H1B quota

Did you know you can avoid the H1B quota?

In 2007, it took only 24 hours to fill up the 65,000 strong H1B quota. Unlike previous years, when getting the petition through on the first few days meant surety of reciept if nothing else, this year it didn’t matter who sent the applications earlier and who were late. The rush of applications on the first day itself were three times more then the numbers avialable! Each and every application, which were approximately around 150,000, were put through a lottery program that picked lucky winners randomly.

The effect of the H1B quota debacle  goes much further than statistics. It has shaken the peoples faith in the system. Most aspirants for H1B this year, which opens for application on April 1st 2008, have resigned themselves to a repeat performance. Since its unlikely that we can change the 2008 H1B quota, we have come with the next best thing.

There are certain exceptions to the H1B quota which makes certain H1B level jobs exempt from the annual quota. Here we will explain those and you can check to see if you fall under any such exeptions.

Scenario 1:  The Employer is H1B Cap-exempt

As it is explained in the Part B of Form I-129W (H1B Filing Fee Exemption), the following types of Employers are exempt from the H1B Annual Cap:

  1. An institution of higher education as defined in the Higher Education Act of 1965
  2. A nonprofit organization or entity related to, or affiliated with an institution of higher education. Such a nonprofit organization or entity includes but is not limited to hospitals and medical or research institutions. Institutions of higher education means as defined in the Higher Education Act of 1965. Here ”Related to” or ”affiliated with” means the employer is either-
    1. Connected or associated with the institution of higher education through shared ownership or control by a board or federation operated by the institution of higher education or
    2. Attached to the institution of higher education as a member, branch, cooperative, or subsidiary
    3. ”Nonprofit organization or entity” means the organization or entity is
        • Defined as a tax exempt organization under the Internal Revenue Code of 1986 and
        • Has been approved as a tax-exempt organization for research or educational purposes by the Internal Revenue Service.
  3. The employer is a nonprofit research organization or governmental research organization that is primarily engaged in basic research and/or applied research. ”Nonprofit organization or entity” means the organization or entity is
    • defined as a tax exempt organization under the Internal Revenue Code of 1986 and
    • Has been approved as a tax-exempt organization for research or educational purposes by the Internal Revenue Service. A government research organization is a United States Federal government entity whose primary mission is the performance or promotion of basic research and/or applied research;
  4. The employer is a primary or secondary education institute.
  5. The employer is a nonprofit entity, which engages in an established curriculum-related clinical training or students register at the institution.

Scenario 2: Filing for an H1B within 6-year validity period of old H1B.

This basically means, once a banaficiary’s H1B petition is approved, he or she can change employers and apply for new H1B, provided his or her orignal 6-year H1B period is not over. This rule also allows for beneficaries who left the United States before finishing their original H1B tenure and wish to apply for an H1B after one years gap. 

NOTE: However, the change of employment will NOT give the beneficiary another additional three year, but will only be valid for the original 6-year period. For example, if Beneficiary A has used up 4 years of his original H1B and was absent from US for over an year, his application for H1B will be cap-exempt but valid for only two year – the time left from the original tenure. His stay outside of US is not counted here.

EXCEPTION: This exemption does not apply if the original H1B was filed by a cap-exempt employer. In that case, the beneficiary is considered to be NOT counted against the cap previously and will sunjected to the annual cap.

Scenario 3: Filing an petition for H1B Extension of Stay

H1B Visa’s are initially approved for three years and can be extended once for another three years and sometimes even extended beyond its 6-year limit under certain circumstances. These subsequent petitions for extensions for an already approved H1B are not subjected to the cap as they are deemed as been previously COUNTED under the H-1B quota.

Scenario 4: Filing an amended H1B petition

The employer and the beneficiary both are required by law to notify the USCIS of any changes in the details of the original approved H1B petition as and when it occurs. For example, change of employer, name, address etc. Such a petition is called an Amended petition and is not subjected to the annual cap either. The rule here is the same as in scenario 2.

Scenario 5: Filing a petition To correct an error

As in the previous scenario, if either the employer or beneficiary notices any error in the information in the approved H1B petition that occurred on the part of the INS, they are required by law to file a corrected H1B petition. Such a petition will not be subjected to the annual cap, just as in the previous two scenarios.

Scenario 6: Working for a cap-exempt third party petitioner?

It is possible that an employer may not be H1B cap-exempt, but the beneficary may still be working for a third party client who is.Confused? The USCIS rule regarding this allows that any one working “at” an exempt organisation, even if actually employed by a non-exempt employers, is not subjected to the cap. They are known as “third party petitioners.”

In such cases it is on the petitioner to prove that the H1B employee will work at the cap-exempt institute and how the beneficiaries duties are relevant to that institutes work.

ScENario 7: Filing against the H1B Masters quota

The H1B Masters quota, with an annual cap of 20,000 is for H1B petitioners who hold an completed Masters degree from an US University. For more details look into our article Overview of H1B Master’s Quota.

Scenario 8: Beneficiary hails from countries with Free Trade Agreement with US

Under the Free Trade Agreement rules, the United States set asides a small number of H1Bs that are only for countries that have signed the FTA with the US. Currently Singapore and Chili have such an agreement and are allowed the luxury of having 5,400 H1Bs set aside for them.

Till 2007, we have seen that these numbers have rarely been filled up and the un-used H1Bs are later made avialable for petitions from other countries.

Scenario 9: ALTERNATE WORK VISA for Australian CITIZENS

The E-3 is an H1B equivalent for Australian Nationals and have an annual cap of 10,500. See our article on E-3 Visas for more detail.

Scenario 10: Working for both exempt and no-exempt employers

It is possible to work for an NON cap-exempt employer on a part-time basis, if the beneficiary is full-time employed by an cap-exempt employer. In a layman’s term, the beneficary can moonlight for cap-subjected employers as long as he H1B was sponsored by a cap-exempt employer.