Temporary Visas > H1B Visa

H1B VISA
CAP SUBJECT vs. CAP EXEMPT

Summary: The H1B visa is the standard employment based work visa for physicians and scientists. The purpose of this section is to discuss the issues relating to Cap Subject and Cap Exempt Visas.

General Information

• The current annual cap (limit) on H-1B visa issuance is 65,000 visas per fiscal year (October 1st through September 30th of the following year).
• The H1B visa cap in fiscal year 2008 was reached in four (4) days.
• The H1B visa cap in fiscal year 2009 was reached in just over eight (8) months. The substantial difference was due to the far fewer number of H1B visa applications filed for computer professionals in 2009 due to the downturn in the economy. A similar situation is expected in fiscal year 2010.
• The earliest an H1B visa application can be submitted is six months prior to the planned start date. Hence, an application for H1B visa for a start date of October 1 may only be filed on April 1 or thereafter. For medical residents/fellows starting training on July 1, the application may only be submitted January 1 or thereafter
  
• Not all H-1B visa applications are subject to this annual cap
• Employer Exemptions from the cap include:
  • Institutions of higher education (i.e. Universities or Colleges)
  • Non-profit institutions affiliated with an institution of higher education (i.e. Non-profit hospitals affiliated with Universities/Colleges)
  • Non-profit research organization or a governmental research organization
• The great majority of hospitals with residency programs are exempt from the annual cap – hence, the cap is usually not an issue for medical residents/fellows seeking H1B visa
• Private, for profit, employers (such as private practice medical groups) are typically subject to the cap – however, there is a narrow exception which is applicable in certain situations (see box below)
  
  • In an internal memorandum published by USCIS on June 6, 2006, USCIS clarifies that in order to be considered exempt from the cap under section 103, the alien need only be employed at a qualifying institution, and need not necessarily be employed by such an institution, so long as the alien's employment "directly and predominately furthers the essential purposes of the qualifying institution." In other words, the memo states, there must be a "logical nexus between the work performed predominately by the beneficiary and the normal, primary or essential worked performed by the qualifying institution.
    
  • Our law firm has been very successful in obtaining cap exempt H1B visas for physicians working in private practice so long as their work locations include non-profit hospitals affiliated with institutions of higher education.
  • Please see the USCIS memorandum for a more thorough discussion of possible cap exemption in this situation.
    http://www.uscis.gov/files/pressrelease/AC21C060606.pdf
  • Due to the complexities of cap exemption issues, kindly contact us directly for guidance as to whether a particular job offer may be considered as an appropriate filing for cap exempt visa.