FAQs on H1B Quota and Cap Exemption
Posted Jan 12, 2007
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At the Murthy Law Firm we have been receiving questions about the Fiscal Year (FY) 2008 H1B cap from our clients, visitors to our website, our forum and chat participants, and from readers of our bulletin. One of the most common inquiries is how can one identify cap-exempt employers. As explained below, there is no website that lists cap-exempt employers, but certain types of employers do qualify as cap exempt. Many who have been contacting us would also like to know whether there are advanced-degree cap numbers available for this year. Unless there is a change in law, 20,000 cap exemptions are allocated annually for persons with advanced U.S. degrees. Details on these important questions follow.
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Question 1.  Is there a list somewhere of H1B cap-exempt employers that I can access? How do I know if my potential employer is cap exempt?
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There is no list of cap-exempt employers on the Internet or elsewhere. H1B cap exemptions are based upon an employer's fitting within a particular category as set forth under the law and USCIS interpretations of that law. It is not something that an employer applies for with the USCIS or other government agency. An employer claiming the exemption must be able to establish that the requirements in the regulations for the H1B quota or cap exemption are satisfied.
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Exemptions from the cap are limited to institutions of higher education or related / affiliated non-profit entities, or at non-profit research organizations, or governmental research organizations. Whether or not a particular employer fits within the definitions is sometimes unclear. There was a memo issued regarding the use of the term employed "at" (as opposed to "by") in the cap exemption institutions for higher education and related or affiliated entities. The memo also addressed what is meant by affiliation. The affiliation matter was further litigated and a fairly narrow decision was handed down in 2006. This memo was the subject of our June 16, 2006 article, USCIS Guidance on H1B Cap Exemptions, available on MurthyDotCom. It may be prudent to discuss cap exemption with a qualified and experienced immigration attorney to gain clarity in a specific case.
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Question 2.  Are there cap exemptions for persons with advanced degrees from U.S. universities for FY2008? If so, when can the applications be filed? When is the start date for these H1Bs? Does my job have to require the advanced degree?
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Yes, there are 20,000 cap exemptions for persons with U.S. masters' degrees or above. This is an annual allocation that follows the same timing and cycle as the general 65,000 H1B cap numbers. As with the regular cap, these cases can be filed starting April 1, 2007, with a requested start date of no earlier than October 1, 2007.
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As indicated in other articles on MurthyDotCom, the job does not have to require the advanced degree. The individual must possess the required master's or higher degree. While all of the requirements must be completed, s/he need not be in possession of the physical diploma.