1. What is the process for filing an H-1B cap-exempt petition?

The process for filing an H-1B cap-exempt petition is as follows:

1. Determine if the organization qualifies as cap-exempt: An organization qualifies as cap-exempt if it is a university or a non-profit affiliated with a university, a non-profit research organization or a government research organization.

2. Prepare the Petitioner’s supporting documents: The petitioner must provide a number of documents to demonstrate the qualifications of the foreign national beneficiary and the organization’s cap-exemption status. These documents may include evidence of the petitioner’s nonprofit tax status, the beneficiary’s educational credentials, and other documents.

3. File the petition with USCIS: The petitioner must file the petition with USCIS using Form I-129. The filing fee must be included with the petition. Additionally, if applicable, the petitioner must also submit a Labor Condition Application (LCA) with the petition. Once USCIS has received and accepted the petition, it will notify the petitioner.

4. Employer issues H-1B approval notice: Upon USCIS approval of the petition, the employer must issue an H-1B approval notice to the foreign national beneficiary. The beneficiary can then use this notice to apply for a visa (if necessary) and begin work in the U.S.

2. What type of information is required to be submitted in an H-1B cap-exempt petition?

In an H-1B cap-exempt petition, the petitioner must provide documentation to prove that the position and employee meet all criteria for an H-1B cap-exempt filing. This includes evidence of the employer’s non-profit tax status; documentation of an affiliation with a higher education institution, nonprofit research organization, or government research organization; evidence of an extension or amendment to an existing H-1B visa; or other qualifications. In addition, the petition must include all information required for a regular H-1B petition, such as the employer’s intent to employ the beneficiary in a specialty occupation and the beneficiary’s qualifications.

3. How long does it take to process an H-1B cap-exempt petition?

It typically takes 8-14 days to process a cap-exempt H-1B petition. However, processing times can vary significantly depending on the case’s complexity and the workload of the United States Citizenship and Immigration Services (USCIS). It is important to note that while an employer may submit an H-1B cap-exempt petition at any time, the employee must maintain their current status until the petition is approved.

4. What is the difference between H-1B regular cap and H-1B cap-exempt petitions?

In the United States, H-1B visas are used to allow employers to temporarily hire skilled foreign workers in specialty occupations. The H-1B regular cap refers to the annual number of new H-1B visas available each year, which is currently set at 65,000 for each fiscal year. The H-1B cap-exempt petitions are petitions for workers who will be hired in certain non-profit research and educational organizations, and who are therefore exempt from the annual H-1B visa cap.

5. What documents must be included with an H-1B cap-exempt petition?

In addition to the Form I-129 petition for a nonimmigrant worker, the following documents should be included with an H-1B cap-exempt petition:

1. A copy of the beneficiary’s valid passport;

2. Evidence of the beneficiary’s highest level of education, such as diplomas, transcripts, and/or degrees;

3. Evidence of the beneficiary’s qualifications for the job, such as certificates or licenses;

4. Resume or CV;

5. Proof that the employer is exempt from the cap, such as an official letter from a government agency, institution of higher learning, or nonprofit organization;

6. Evidence that the position requires a professional in a specialized field (such as a detailed job description); and

7. Documentation showing how the salary for the position will be paid (such as payroll records or contracts).

6. Are there any special requirements to qualify for H-1B cap-exempt status?

Yes, to qualify for H-1B cap-exempt status, you must meet certain criteria. To be considered cap-exempt, the applicant must be employed at an institution of higher education, a nonprofit research organization, or a government research organization. Additionally, the position must be a direct result of the research and/or education activities of the institution.

7. How does an employer know if they are eligible to file an H-1B cap-exempt petition?

An employer must meet certain criteria to be eligible for filing an H-1B cap-exempt petition. Specifically, they must be an institution of higher education, a nonprofit organization related to or affiliated with an institution of higher education, a nonprofit research organization or government research organization, or a primary or secondary educational institution. Additionally, the employee must meet the definition of a specialty occupation as defined by the U.S. Citizenship and Immigration Services (USCIS).

8. Can a foreign national who is already in the United States in another nonimmigrant status apply for an H-1B cap-exempt status?

Yes, a foreign national who is already in the United States in another nonimmigrant status may apply for an H-1B cap-exempt status. In order to do so, they must demonstrate that their employer is exempt from the H-1B cap and that they are eligible for the visa classification.

9. What is the filing fee for an H-1B cap-exempt petition?

The filing fee for an H-1B cap-exempt petition is $460.

10. What is the required processing time for an H-1B cap-exempt petition?

The processing time for an H-1B cap-exempt petition varies depending on the type of petition being filed and the workload at the United States Citizenship and Immigration Services (USCIS) office that is processing the case. Generally, USCIS will make a decision on an H-1B cap-exempt petition within 90 days of filing.

11. Can an employer amend or extend an H-1B cap-exempt petition?

Yes, an employer can amend or extend an H-1B cap-exempt petition. In order to do so, the employer must file an amended or extended Form I-129, Petition for Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).

12. Can an employer transfer or port an employee from a cap-subject petition to a cap-exempt petition?

Yes, an employer can transfer or port an employee from a cap-subject petition to a cap-exempt petition. This is known as “portability” and is allowed under certain circumstances. For instance, an employee whose current H-1B status was obtained through a cap-subject petition may be able to switch to a new employer’s cap-exempt petition if the new employer is either a university or a nonprofit research organization.

13. What is the difference between concurrent filing and portability when it comes to H-1B cap-exempt petitions?

Concurrent filing is the filing of two or more H-1B petitions for the same beneficiary. This is usually done when the beneficiary is seeking employment in multiple locations or fields. The petitions are filed at the same time and are subject to the standard H-1B cap.

Portability is a provision in the American Competitiveness in the Twenty-First Century Act (AC21) that allows foreign nationals who are the beneficiaries of approved H-1B petitions to start employment with a new employer as soon as the new employer files an H-1B petition with USCIS, without waiting for the petition to be approved. This provision does not count against the annual H-1B cap and can be used by both cap-subject and cap-exempt employers.

14. Are there any restrictions on reusing a previously approved I-129 form when filing for an H-1B cap exempt petition?

Yes, there are restrictions on reusing a previously approved I-129 form when filing for an H-1B cap exempt petition. The petition must be filed as a new petition, and the petitioner must submit a new I-129 form with all applicable documents and evidence. Additionally, the petitioner must pay a new filing fee if applicable.

15. Does the employer need to submit a labor condition application (LCA) with an H-1B cap exempt petition?

Yes, the employer needs to submit a labor condition application (LCA) with an H-1B cap exempt petition.

16. Is there a limit to the number of times a foreign national can renew their H-1B cap exempt status?

Yes, there is a limit to the number of times a foreign national can renew their H-1B cap exempt status. An H-1B cap exempt foreign national may renew their status for up to a maximum of 3 years. Beyond that, they may need to apply for an extension or change of status.

17. Does filing for an H-1B cap exempt status guarantee that the foreign national will be approved?

No, filing for an H-1B cap exempt status does not guarantee that the foreign national will be approved. The application must meet all of the eligibility criteria and be approved by the U.S. Department of Homeland Security.

18. Is there any benefit to filing for an H-1B cap exempt status instead of regular processing?

Yes, filing for an H-1B cap exempt status can provide some benefits. It can result in a faster processing time since the petition does not have to go through the cumbersome lottery process. Additionally, it allows employers to begin the employment of the beneficiary earlier since the petition does not have to wait for the result of the lottery.

19. Are there any other forms that must be submitted with an H-1B cap exempt petition aside from the I-129 form?

Yes, depending on the circumstances, other forms may be required for an H-1B cap exempt petition. These forms may include the Form I-907, Request for Premium Processing Service; Form I-129H, H-1B Data Collection and Filing Fee Exemption Supplement; and Form ETA 9089, Application for Permanent Employment Certification. Additionally, depending on the visa classification, information regarding the individual’s qualifications must be submitted as part of the petition. This could include copies of diplomas, transcripts, professional licenses, and/or certifications.

20. How can employers ensure that their petitions are properly prepared and submitted for approval of an H–1B Cap Exempt Petition?

To ensure that their petitions are properly prepared and submitted for approval of an H–1B Cap Exempt Petition, employers should consult with an experienced immigration attorney familiar with the intricacies of the H–1B process. Additionally, employers should ensure that all necessary documents are included in the petition filing package, as well as making sure that the filing fee is included in the filing package as well. Finally, employers should also be aware of the timelines for submission of the petition and any potential delays associated with processing times.