H-1B “cap-exempt” petitions, as referenced here, include petitions filed by: 

 

•Institutions of higher education；

•Nonprofit organizations or entities related to or affiliated with institutions of higher education; and 

•Nonprofit research organizations or governmental research organizations

 

        Petitions filed on behalf of aliens who will be employed by certain types of educational, nonprofit or governmental organizations (these types of petitioners are normally referred to as “cap-exempt” because an H-1B alien employed by such an entity is not subject to the H-1B numerical limitations) are not counted towards the numerical limitations in H-1B. 

 

        Pursuant to the provisions of INA §214(g)(6), USCIS does not require that an alien who is cap- exempt by virtue of the above types of employment, be counted towards the limitation contained in 214(g)(1)(a) if they accept concurrent employment with a non-exempt employer. INA §214(g)(6) reads as follows:

 

        “Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 1101(a)(15)(H)(i)(b) of this title, who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).”

 

        Documentary evidence, such as a current letter of employment or a recent pay stub, should be provided in support of such a concurrent employment petition at the time that it is filed with USCIS in order to confirm that the H-1B alien beneficiary is still employed in a cap-exempt position. 

 

        At the time of filing of a concurrent employment H-1B petition that is subject to the numerical limitation of 214(g)(1)(a): 

 

a. If the H-1B alien beneficiary has not “ceased” to be employed in a cap-exempt position pursuant to INA § 214(g)(5)(A) and (B), then he or she will not be counted towards the cap. 

 

b. If the H-1B alien beneficiary has “ceased” to be employed in a cap-exempt position, then the alien will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to the alien beneficiary. 

 

c. If USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf,  USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.