can ngo sponsor h1b?

An organization may be considered to be a nonprofit if it has a relationship or affiliation with an institution of higher education. While this doesn’t mean that all organizations affiliated with institutions are necessarily nonprofits, or that such an affiliation is required to be a nonprofit, this is a good rule of thumb to consider doing more research into a potentially cap-exempt H-1B nonprofit sponsor.

The most straightforward way to discover this affiliation is if the organization has been granted tax-exempt status for educational or research purposes. Qualified employers under this category are also granted certain filing fee waivers.

The most common institutions are teaching hospitals that are affiliated with medical schools. This is because they usually have an agreement that allows students of the university to receive medical training and grant certain medical benefits to the faculty members of the school.

While other places like secondary or primary schools may also qualify as nonprofit entities, such cases are more likely to be investigated by the USCIS based on the strength of the affiliation they have with a qualifying organization.

Certain teachers are able to be considered cap-exempt depending on the school district that employs them. The USCIS lays out the requirements for a cap-exempt school district as such:

If you are currently a teacher or administrator employed under H-1B status for a cap-exempt district and wish to transfer, then your new district will need to file a transfer petition on your behalf. If your new district is not cap-exempt, then your registration will be entered into the lottery.

Some “for-profit” entities may also be permitted to file cap-exempt petitions on your behalf. These could be a consulting or contracting company that is willing to sponsor you so that you will be working exclusively for a nonprofit institution of higher education, a nonprofit affiliate of such an institution, or a nonprofit governmental research organization.

The H-1B cap-exempt category does not have a set quota or annual limit like the regular and advanced degree categories. Since it is unlimited and can be applied for at any point during the year it is highly sought after. However, there are certain criteria that must be met for approval to be granted.

If you previously were under H-1B status and are outside the country you may be able to have an employer file a cap-exemption for the rest of your allowed duration up to 3 years. In order to do so however you must show that you were on H-1B status in the country within the past 6 years but haven’t used up that entire time on H-1B status.

For example, Maria was employed on H-1B in the United States from February 2010 to December 2013. She would not be able to file a new cap-exempt registration because she hasn’t been in the country within the past six years. With that being said, she must have her registration submitted in the next regular lottery on April 1st.

Another way of going around the annual quote is through H-1B cap-exempt jobs. This entails having a cap-exempt employer file a petition on your behalf. There are specific types of organizations and employers who qualify for H-1B cap-exempt petitions. According to H-1B requirements, these employers include:

To avoid any confusion, USCIS defines a nonprofit research organization as one “whose primary purpose is to directly contribute to the research or education mission of the institution of higher education.” Moreover, it defines a governmental organization as “a United States Government entity whose primary mission is the performance or promotion of basic research or applied research.”

In the past, only nonprofit entities that were associated with the federal government were considered cap-exempt. Now, due to the changes made through the Federal Register’s Final Rule, the nonprofit cap-exempt employer can be associated with a state or local government organization.

The Final Rule also broadened the definition of a nonprofit organization by replacing the phrase, “primary purpose”, with the more flexible phrase, “fundamental activity”. Making this change allows H-1B nonprofit entities to qualify even if their primary purpose is not to contribute to research; it only needs to be a fundamental activity.

Colleges and universities are the most common type of not-for-profit institutions and those affiliated with these entities are typically medical labs, research units, and hospitals.

Below are some of the documents that can be used to demonstrate that the organization is a not-for-profit research organization:

Are you still unsure if your desired position falls under the regulations? Consult an H-1B transfer attorney to find out.

Yes, you may work at a cap-exempt job even if your petition was filed by an employer who does not qualify as cap-exempt. This is in line with a 2008 USCIS Memorandum Guidance Regarding Eligibility for Exemption from the H-1B Cap based on § 10 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).”

However, the requirement for this is that the specific job position must further the essential purpose, objectives, mission, or function of a qualifying cap-exempt institution or entity. A good example is an H-1B beneficiary employed by a non-qualifying cap-exempt private employer to work in a pharmacy located on a university hospital campus. However, it will not be enough to just work in that location, the specific job must be seen to be contributing significantly to the hospital.

If you are currently under H-1B nonprofit status, you are not counted towards the cap and can file cap-exempt H-1B petitions. This means that you can extend the period you remain in the U.S., can change your terms of employment, and file a transfer without being subject to the cap.

On the other hand, if an H-1B employee wants to port from a cap-exempt employer to a cap-subject employer, the employee will need to wait until the next H-1B filing window to be entered into the cap. The employee may also not be eligible to start working with the new cap-subject employer until the pending H-1B petition is approved.

If you attempt to use the portability rule to move from cap-exempt to cap-subject employer after the cap for that fiscal year has been met, the attempt will raise red flags with the USCIS. According to the memorandum, the USCIS will only approve such a petition if you (the beneficiary) were not responsible for terminating the cap-exempt employment.

To get the most accurate picture regarding your eligibility it’s best to consult an H-1B transfer lawyer or an immigration attorney.

The answer to this will depend on certain factors which include the applicant’s experience, background, as well as his or her readiness and commitment to job searching. The H-1B visa is the most competitive nonimmigrant work visa, which means you will likely have to be skillful in your field to land a position.

However, records are indicating that many institutions are successfully obtaining cap-exempt job visas for their qualified H-1B beneficiaries. For instance, data shows that between 2014 and 2016, Samsung Research America, Inc., Research Foundation of Cuny, Food and Drug Administration, Hhs, and General Electric Company Global Research Center got approvals for 251, 235, 187, and 178 H-1B cap-exempt visas respectively. So, if your cap-subject registration was unsuccessful or you are unable to wait for the next H-1B lottery window to open, you can look to obtain an H-1B visa through a cap-exempt employer.

Apart from your regular job searching skills, certain websites dedicated to nonprofit job vacancies can expedite your goal of landing a cap-exempt H-1B job. One of these sites is called My Visa Jobs, which has a list of all the H-1B cap-exempt employers and how they rank in terms of visa approval rates.

Once you find a job through this website, it is important to go a step further by checking with the employer to double-check their cap-exempt status. Guidestar.org and idealist.org are other websites that give you the database of many nonprofit organizations while governmentjobs.com has a list of government agencies that may be willing to sponsor a cap-exempt H-1B job.

*We assume no responsibility for the accuracy of these job posting sites. They are in no way affiliated to VisaNation.

There are many benefits associated with being considered cap-exempt as we briefly mentioned above. If possible, this route is a great way to get your first H-1B visa as it is not limited by the quota or any predetermined deadlines.

Also, you have the option to transfer to a new cap-exempt employer once you obtain your H-1B visa. You can find a list of cap-exempt employers and jobs by conducting a search online. There are a number of databases that are dedicated exclusively to this category.

However, if you plan to enter the U.S. through a cap-exempt employer and switch to a cap-subject employer, you will be subject to the cap. For this, you will need to have your new employer file a new H-1B petition in the next lottery and hope that your petition is selected.

Typically, when individuals contemplate H-1B cap-exempt jobs they automatically think they are limited to teacher positions or other collegiate roles. Fortunately, that’s far from the case. There are a number of positions within universities and colleges that may be applicable to you.

For instance, an H-1B cap-exempt employer may seek help in the IT department, finance department, hospital, or medical facility. Identifying a cap-exempt employer has become relatively simple with the number of online databases available which post H-1B cap-exempt jobs.

H-1B cap-exempt processing times may vary although on average regular processing takes anywhere from 3-4 months while opting for premium processing can shorten your petition’s processing time to 15 days. Learn more about H-1B transfer premium processing.

As mentioned, premium processing allows the processing time to be cut down to 15 calendar days for a cost of $2,500. Be aware that USCIS typically takes an extra 2 weeks to mail the paper approval notice. The 15 days begins on the day they received your petition. You will receive one of the following responses:

You will likely hear the words Portability Rule get thrown around and are wondering what it means. Under the H-1B Portability Provision, the intention is to offer protection for H-1B nonimmigrant workers who are in the U.S. so that they can start working with a new employer if the following conditions are met:

So basically it allows the H-1B worker who is working with one employer (with a valid LCA) to accept a job by the new employer who has filed the petition, even before it has been adjudicated. The H-1B worker does not need to worry about being out of status when changing to the new job.

If your H-1B visa application, either cap-subject or cap-exempt, was denied or you need an alternative route to working lawfully in the United States, the good news is that you have several options.

You can apply for other nonimmigrant work visas such as the O-1 and L-1 classifications. In fact, some of these visas are not subject to an annual cap like the H-1B is and can be applied for at any time of the year. However, it is important to know that the requirements for these visas may be significantly different from those of the H-1B visa. Therefore, you should work closely with your immigration attorney when pursuing new options.

Related Topics: H-1B Dependent Employer, H-1B for Nurses

According to the U.S. Department of Labor Wage and Hour Division,

“An exempt H-1B nonimmigrant is an H-1B worker who meets one of the following statutory standards:

The $60,000 minimum annual wage is for either full or part-time workers who receive hourly compensation or an annual salary. All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).

Summary of the Cap-Exempt H-1B Category

The regulations provide for a cap of 65,000 on H1B applications approved every year. For several years now, the number of H1B petitions filed regularly reaches the maximum allowed cap within first few weeks, if not days. Even the additional H1B cap of 20,000 specifically for individuals with advanced degrees from US institutions fills up during the initial filing period.

Thus any foreign national who seeks an H1B visa faces significant difficulties under the current structure due to the limited numbers of available H1B slots.

While the regular H1B cap is currently set by statute at 65,000, there are several “exemptions” that raise the actual number of new H1B’s each year.

A clear understanding of the exemptions available can help employers and applicants increase their options to seek an H1B even when the H1B cap is exhausted.

The H1B cap does not apply to organizations filing the H1B petitions if they are institutions of higher education (or related non-profit entities), non-profit research organizations, and government research organizations.

Many foreign nationals are not aware that these companies and organizations are exempt from the H1B cap and can sponsor an H1B visa any time of the year.

Let’s take a closer look at which institutions tend to qualify as H1B exempt employers.

In this article, we take a look at the employers who are exempt from the H1B cap. Click here if you want to learn more about hiring H1B cap exempt candidates.

H1B petitions filed by institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), are exempt from the H1B cap.

Under the definition, an institution of higher education is one which:

Company A, a non-exempt employer, files an H1B for Jane Margret. Jane will be performing duties onsite at a qualifying government research organization (B), as part of a joint agreement between A and B. Company A supports the H1B petition with proof that Jane will work on a research project, performing duties similar to those performed by the employees of Organization B and that this work is related to Organization B’s mission. If B filed the H1B petition, the exemption would apply. Will Company A case fall under the exemption?

Yes, Jane would be exempt from the H1B cap because she will perform research duties that would otherwise have been performed by the qualifying institution’s employees in furtherance of the institution’s mission.

For more information keep reading.

H1B petitions filed by non-profit entities that are related or affiliated to an institution of higher education are exempt from the H1B cap.

USCIS states that it is sufficient that a non-profit entity is connected to an institution of higher education through shared ownership, control or be somehow attached to the higher education institution as a member, branch or subsidiary.

The exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the exempt institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.

It is important to note that public secondary schools do NOT qualify for H1B cap-exemption unless they have a formal affiliation agreement with a college or university.

Peerless Inc is a non-profit market research firm that would not qualify for the H1B exemption. They file an H1B for Ibrahim Muzzamil, one of the company employees. Ibrahim will be conducting market research onsite at a university that does qualify for the H1B exemption. He’d also be accessing a research tool available only through the university. However, the research is for the benefit of the petitioner’s clients, not the university. Would this H1B be cap exempt?

Ibrahim is physically working at an exempt institution, but the work performed is in no way related to the purposes of the qualifying entity. The employer, not the university, benefits from this work. Thus, Ibrahim doesn’t qualify for the H1B cap exempt.

H1B petitions filed by nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C), are exempt from the H1B cap.

A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.

H1B petitions filed by non-qualifying organizations may still be cap-exempt as long as the employee will be working “at” a qualifying institution.

In order to qualify, the H1B employer must be able to show that the employee will spend all or most of their time working at a qualifying institution (institutions of higher education (or related non-profit entities), non-profit research organizations, and government research organizations) AND that the employee’s duties and activities further the primary purpose or mission of the qualifying institution. There must be a “nexus” between the duties performed by the H1B employee and the mission or objectives of the qualifying institution.

All of the criteria above must be met in order for an institution or an organization to qualify for H1B cap-exempt status.

It is extremely important that an employer or a foreign national who wishes to seek H1B status under a cap-exempt petition verify that the cap exempt H1B employers qualify under one of the three categories above.

In some cases such analysis will be fairly quick (e.g. recognized universities) but in many cases, especially with non-profit organizations, the analysis may be more complicated and takes careful assessment.

If you think that your organization or your potential employee qualifies for H1B cap exemption, we can help with the analysis so you can be sure that you qualify. Filing a petition without a clear answer on this question can lead to a waste of time, resources and money.

Fortunately, there are organizations that are exempt from the H1B cap.

Contact VisaPro if you have any questions regarding the H1B Cap, or need help in filing the H1B Cap Exempt petitions.

Video Transcript

1. The answer is No. There is no advantage in going through for-profit or non-profit that's just irrelevant.

2. No, non-profit or for-profit does not matter you cannot transfer I-140s, you can transfer priority dates unless your 1-140 is based upon a National Interest Waiver or an EB-1A.  Your green card can be transferred once your I-140 is approved and I-485 has been pending 180 days, then it doesn't matter what the nature of the organisation is.

3. a.  I don't think there is any specific law on this issue. Technically, you can start working for them on receipt, but obviously you will only get a receipt if your case is picked up for the lottery. So if you have been maintaining H-1B status I believe you can start working for a cap subject employer as soon as your H-1 is picked up.

b.  Absolutely. My guess would be if your H-1B cap subject H-1B is approved and it is not revoked till October 1st, I don't think you will be subject to a cap to work for a for-profit in the future. It shouldn't be revoked before October 1st and you should receive your change of employer. So in other words, you should get a new I-94 with the case because USCIS has been taking this position that just getting an H-1B approval does not put you over the top where you are safe from cap quota issues. They say unless you receive a change of status or go get a visa stamping till that time you are not exempt from the quota so you must also receive an I-94 which is a transfer of employer, but you can still continue working with the old employer.

c.  Another way is applying for concurrent H-1B although it is a strange provision in the law where if you have a quota exempt H-1B as long as you maintain that without worrying about the quota you can also work on a concurrent H-1B for a quota employer.

d. Moving to H-4 EAD is not a good idea because in June they are going to announce the revocation of the H-4 EAD regulations according to the court.

e. Joining a Master's CPT and filing a cap yes, that's definitely an option.

More....

Overall, working in a nonprofit organization, there are the following advantages: You can apply for an H1b visa even after you do not qualify for the annual quota. You can add the work experience to your resume instead of waiting for the next year to apply.

The H-1B is an employer-sponsored nonimmigrant classification which allows persons who are not citizens or permanent residents of the U.S. to work in a specialty occupation for up to six years with very limited exceptions. "Employer-sponsored" means that the employer must apply for the H-1B on behalf of the prospective H-1B employee through the United States Citizenship and Immigration Services (USCIS). "Specialty occupation" means a position that requires specialized knowledge and skills, and at least a bachelor's degree in that specialty. The H 1B also requires that the H-1B employer pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment.. Since the procedures and record keeping required for the H-1B are complex, an attorney or other trained person will be necessary to complete the paperwork.

A broad range of professional occupations qualify for H-1B status. Generally, professional-level occupations in engineering, biological, physical, social sciences, mathematics, and business administration will qualify for H-1B. A bachelor's degree is always the minimum requirement for an occupation to qualify for H-1B status, but depending on the position, an advanced degree (Master's or Ph.D.) may be necessary.

H-1B status is available to a person who has been offered a temporary professional position by a U.S. employer. A bachelor's degree or higher in a related area is the minimum educational level required for a position to qualify for H-1B status, and the H-1B employee must have this degree (or higher).

Not necessarily. The job itself must require a bachelor's degree or higher in a specialized field. You must then have that degree to qualify for H-1B status.

It may be particularly difficult to get H-1B status for certain types of jobs. Positions in sales can be difficult if they do not require special training. Some positions in the computer industry, especially computer programming, can be difficult because the minimum requirements for some computer-related jobs are not always well established. An attorney can advise you as to the applicability of an H-1B for a particular job.

Yes, the employer hiring an H-1B worker, must have documentation to prove, and then must certify to the U.S. Department of Labor (DOL) that it will pay the H-1B employee the prevailing wage or the actual wage, whichever is higher. The prevailing wage is the salary paid to workers in similar occupations in the geographic area of the intended employment. The actual wage is the wage that the employer pays employees in similar occupations at the location of the intended employment. The employer must also certify that it is not displacing any U.S. workers to hire the H-1B applicant, and that there are no strikes or other work stoppages in the occupation in which the H-1B applicant will be employed. The employer makes these declarations, under penalty of perjury, by submitting to DOL for certification a form called a "Labor Condition Application" (LCA).

After receiving the certified Labor Condition Application (LCA) from DOL, the employer then submits a petition (application), with supporting documentation to the USCIS. There is a USCIS filing fee for all H-1B petitions as well as additional fees for certain H-1B petitions. Please see the USCIS  website on fee information.

The amount of time required to obtain H-1B status varies according to circumstances at the particular employer, DOL and the USCIS. The total processing time at DOL including prevailing wage determination (if necessary)/LCA, and USCIS processing can take as long as six to seven months or longer. Processing times at the USCIS service centers can vary, and you can check their processing times at the USCIS website.

The cap refers to the limit of H-1B visas allowed per federal fiscal year (FY). A fiscal year begins on October 1st and ends on September 30th of the following year. Current regulations set the cap at 65,000 H-1B visas for the entire country. To check the latest cap count please visit the USCIS website.

Universities and related nonprofit entities, nonprofit research organizations and government research organizations are exempt from the cap. These employers are able to submit an H-1B application to the USCIS at any time during the year without concern for the fiscal year limit. However, a person who works for an H-1B cap-exempt employer who changes jobs to an employer that is not exempt may become subject to the H-1B cap.There is also an exemption from the annual cap for the first 20,000 new H-1B beneficiaries who have earned a Master's degree or higher from a U.S. institution of higher education.

The earliest an H-1B application can be submitted to the USCIS is six months prior to the selected H-1B start date. For employers who are subject to the cap (and because the cap may be reached early every year), it is best to submit the H-1B application in April for the start of the new fiscal year on October 1 when the new batch of 65,000 H-1B visas become available.

It is important for an employer to understand that the H 1B is employer-sponsored, which means that they are responsible for submitting the petition to the USCIS. If an employer is unfamiliar with the H-1B status and/or application procedures, an immigration attorney should be consulted to oversee the process. As a prospective employee, you may want to consult with an immigration attorney about a particular position before your job interview to prepare for any questions the employer may have about your work eligibility.

Not necessarily. However, most F-1 or J-1 students will find it advantageous to obtain Practical Training or Academic Training to begin working as soon as they are offered the job since cap subject employment may not start until October 1st, and since H-1B employment may not be possible due to the cap.

Certain, but not all, J-1 Exchange Visitors may be subject to a Two-Year Home Country Physical Presence Requirement and are not eligible for the H-1B status until the requirement has been satisfied or waived by the USCIS based on a recommendation from the U.S. Department of State. If this two-year requirement does not apply, you are eligible for H-1B status if you meet other eligibility requirements. If you are uncertain as to whether this requirement applies to you, consult with a BIO Adviser.

Yes, it is possible for an employer to apply for the H-1B on your behalf while you are residing outside of the U.S. Once approved, you would obtain the H-1B visa stamp at an U.S. Embassy/Consulate and enter the U.S. in that status.

An H-1B approval is employer-specific. It permits an H-1B status holder to work only for the employer that filed the petition. If you decide to change employers, the new employer must apply for the H-1B on your behalf. Consult with an immigration attorney if you are planning to terminate your employment or learn that your employment is being terminated. The H-1B is also position-specific. Therefore, if your H 1B employer wishes to significantly change your job duties or other conditions of employment after securing approval of your H-1B petition, the employer is required to submit an amended petition to the USCIS. In both of these cases, under certain conditions, you MAY be eligible to be paid in the new position after the employer has received the USCIS receipt notice for the H-1B petition (this is called "H-1B portability").

You may be eligible for other types of nonimmigrant (temporary) status that would allow you to work in the United States such as the treaty/trader investment classifications, the TN status for Canadian or Mexican citizens, the J-1 exchange visitor status, the E-3 status for Australian citizens, or the O-1. An immigration attorney can advise you about the eligibility requirements for these immigration categories.

An attorney can help you and the employer present the best case for approval of the H-1B status application to the USCIS. However, an attorney cannot guarantee success of an H-1B application nor can an attorney obtain an H-1B for an unqualified person. In many cases, an attorney may be able to determine in advance whether or not your position and credentials would qualify for an H-1B.

Many benefits await foreign workers who secure an H-1B work visa and can now live and work in the U.S.

While the H-1B work visa is the most competitive non-immigrant work visa (because the U.S. government caps new H-1B visas at 65,000 annually), there is a way around the cap number. Meaning; this could be the path you take if it is right for your circumstance.

For example, many non-profit organizations, including non-profit universities, are exempt from the H-1B work visa cap.

As a foreign worker seeking a U.S. work visa, you’ll need to know which visas are H-1B cap exempt and how you can qualify for them.

Which Non-Profit Jobs Are H-1B Cap Exempt?

According to the United States Citizenship and Immigration Services (USCIS), two categories of employers are exempt from H-1B visa quotas.

1-Institutions of higher education or affiliated entities

According to Section 101 (a) of “The Higher Education Act,” an institution of higher education must meet the following criteria to be exempt from the H-1B cap:

2-Non-profit organizations associated with a government entity or an institute of higher education.

According to USCIS guidelines, the non-profit organization:

The most common non-profit organizations sponsoring H-1B work visas for foreign applicants are colleges, universities and establishments affiliated with institutes of higher learning. These typically include medical labs, research facilities and teaching hospitals.

H-1B Work Visas for Non-Profit Organizations

This cap exemption for “non-profit organizations sponsoring H-1B” work visa applicants means that your application is more likely to be approved if:

It is possible for a cap-exempt employer to file a petition on your behalf to bypass the usual process. For university professors, teaching fellows, university based researchers, university owned hospital staff and others, this non-profit exemption offers a path to getting an H-1B work visa approved - unconstrained by predefined quotas that are also not subject to specific deadlines.

How Does the “H-1B Transfer to Non-Profit Organizations” work?

Workers who are currently already working with an H-1B work visa can file cap-exempt H-1B petitions for transfer to non-profit exempt status. The petition must identify a job offer in order to receive consideration for that H-1B transfer to a non-profit organization. Getting the transfer could extend the period you remain in the U.S., change your terms of employment and enable you to file extensions without being subject to the cap.

However, the transfer does not work the other way around. Workers who are already here on H-1B cap exempt work visas cannot seek employment with employers subject to the cap without going through the lottery application process.

Transfers from one tax-exempt employer to another are possible, and are another great benefit of the H-1B work visa for non-profit organizations.

In summary

If you are pursuing an H-1B work visa for non-profit organizations, it is important to know that you don’t have to navigate the complex U.S. immigration landscape alone.