Has your organization considered filing a petition with US Citizenship and Immigration Services for an H-1B visa to employ a foreign national in a specialty occupation, but decided it would be futile because of the cap on the number of visas that are issued each year?

If your organization is a primary or secondary institution, an institution of higher education, a nonprofit entity related to or affiliated with any such institution, a nonprofit entity which engages in established curriculum-related clinical training of students registered at any such institution, a nonprofit research organization or a governmental research organization, you are exempt from the H-1B cap. Your organization can file a petition for an H-1B visa at anytime, and your H-1B employee can start working for you once the petition is approved (and if necessary, the visa stamp issued ).

Because H-1B visas are nonimmigrant visas, an employer is not required to test the labor market to determine whether there are any willing and able US workers. So long as the labor conditions under which the foreign national will work (including being paid the prevailing wage) are consistent with US workers’ labor conditions, and the foreign national is employed in a specialty occupation, (defined by Section 214(i)(1)(i) of the Immigration and Nationality Act as “an occupation that requires—(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States,” the foreign national can work for your organization for up to an initial three years, and their H-1B can be extended up to a total of six years.

Please contact Nancy A. Noonan at noonan.nancy@arentfox.com or at 202-857-6479 for assistance in determining whether your organization might be exempt from the H-1B cap.

Nancy A. Noonan
noonan.nancy@arentfox.com
202.857.6479