H-1B Cap exempt filings are available for non-profit organizations to file without being subject to the annual H-1B cap process. The non-profit H1B cap-exempt filing allows non-profit organizations to sponsor foreign workers to provide specialized skills and knowledge to the organization, without having to file through the traditional H1B lottery process. The H-1B Cap-exempt filing can be done at any time and is not constrained to be filed during the March registrations and April-June H-1B filing period. Unlike the H-1B Cap process, there is no limit on the H-1B Cap-Exempt visas, and a non-profit organization can file for H-1B cap-exempt at any time for their staffing and operation needs.
Qualifications
Not all non-profit organizations qualify for the H-1B Cap exempt filing. US Citizenship and Immigration Services (USCIS) recognizes the following as non-profit organizations eligible to file cap-exempt petitions:
- Institution of Higher Education.
- Any accredited university/college qualifies as a cap-exempt employer as long as they’re either:
- A public/private university.
- A community college with degree programs.
- A graduate schools/professional degree schools.
- A specialized institutions accredited to grant degrees, authorization required.
- Any accredited university/college qualifies as a cap-exempt employer as long as they’re either:
- Non-Profit Entities Affiliated with Instructions of Higher Education.
- A non-profit organization that has affiliation with an institution of higher education may qualify for cap-exempt H1B. The affiliation should be shown through a written agreement showing shared ownership, control, and/or governance.
- Non-profit Research Organization.
- Organizations that are engaged in basic research/applied research may qualify for cap-exempt status. This can be an organization that is tax-exempt, whose fundamental activities involve basic research or applied research, or governmental research organization (federal/state/local government) where research is their primary function.
Filing Steps
To qualify for the cap-exempt, non-profit employer status, the employer must show that the organization should be recognized as tax-exempt under section 501(c)(3), (c)(4), or (c)(6) of the IRC, and exempt from tax obligations for educational and research purposes as defined by the Internal Revenue Service (IRS). The organization also needs to show documentation establishing connection between nonprofit entity and institution of higher education, research evidence demonstrating basic/applied research, and/or organizational structure documents to show the institution maintains the required relationship with the petitioning entity.
The visa requirements for the cap-exempt employees are identical to the main H-1B cap. The position must be a specialty occupation position, the employee must possess a Bachelor’s degree or higher, and the employer-employee relationship should exist where the non-profit employer will have the right to control over the employee.
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