By Cheng-Hsiang Liu on May 2, 2023
It is more and more difficult to get selected in H-1B Lottery these years. The United
States Citizenship and Immigration Services (“USCIS”) disclosed that there were 780,884
registrant this year and USCIS only selected 110,791 registrants among them, which means you
have only around 14% of chance to get selected. If you are not selected, don’t be upset. There are
still some other options you can consider and start to prepare for. Never too early, isn’t it.
What Can I Do After Knowing That I Am Not Selected
One of those options is cap-exempt H-1B. As the name suggests, this is an H-1B visa just
like you registered for. However, this kind of H-1B will not be subject to the cap if you are
employed at one of the following entities (each “Qualified Entity”): 1
1. An institution of higher education. 2
The term “institution of higher education” means a public or non-profit institution and
must be accredited or have been granted preaccreditation status by a nationally recognized
accreditation agency or association, which admits persons having graduation certificate from
secondary education. 3
2. A non-profit entity related or affiliated to an institution of higher education. 4
The challenge lies in demonstrating the connection between the non-profit organization
and the higher education institution, despite of the explanation from four paragraphs stated in the
regulation about the term “related or affiliated”, which are:
(1) The non-profit entity is connected or associated with an institution of higher education,
through shared ownership or control by the same board or federation.
(2) The non-profit entity is operated by an institution of higher education.
(3) The non-profit entity is attached to an institution of higher education as a member,
branch, cooperative, or subsidiary; or
(4) The non-profit entity and the institution of higher education entered into a formal written
affiliation agreement with an institution of higher education that establishes an active
working relationship between the non-profit and the institution for purposes of research
or education and a fundamental activity of the non-profit is to directly contribute to the
research or education mission of the institution.
Based on our experience, the Administrative Appeals Office (“AAO”) reviews these four
definitions on a case-by-case basis and their decisions are not binding to each other. For
example, there was a petitioner failed to prove its qualification because the AAO deemed the
details of petitioner’s fundamental activity insufficient to prove its contribution. On the other
hand, a petitioner was found qualified because it described the portion of its staff and student that
engaged in the program administrated by both petitioner and institution of higher education. 5
3. A non-profit research organization or governmental research organization. 6
A non-profit research organization is an organization that is primarily engaged in (1)
basic research and/or (2) applied research. 7 The difficulty here lies in the term “primarily”.
Again, the AAO will review the evidence on a case-by-case basis, but we preliminarily
summarize that it is necessary to provide the proportion and personnel engagement in research
and context and details of research projects.
We would like to remind that this is still an H-1B, therefore, you shall still comply with
other fundamental standards and requirements of H-1B, such as the specialty occupation, wage
requirements and employment minimum requirements. Also that, as stated above, most of these
cap-exempt employers should be a non-profit entity and therefore fulfill the standards and
definition of "non-profit" outlined by the Internal Revenue Service regulations.
What If I Cannot Find a Qualified Entity as My Employer?
If you read closely, you may have found a word interesting. “At.” What does “employed
at” mean? This is the language used in the regulation so the Congress must have its purpose.
Different from employed “by”, the current language seems broader, and this is the purpose.
According to the rule, even if you are not directly employed by the Qualified Entities, but
will spend the majority of your work time performing job duties at a Qualified Entities and your
job duties directly and predominately further the essential purpose, mission, objectives or
functions of the Qualified Entity, then the petition for your H-1B will still be exempt from the
cap. 8 In this case, the your employer, which is not a Qualified Entity, show prove that there is a
nexus between your duties and the essential purpose, mission, objectives or functions of the
Qualified Entity. 9
Can I Still Work for the Employer for Which I Intended to Work Before?
You are not allowed to work for any employer other than your petitioner stated in an H-
1B petition. That is, if you want to work for another company that is not the Qualified Entity,
that company must file a separate H-1B petition for you. It is called “concurrent H-1B”. 10 Good
news is that, even the concurrent H-1B petition is filed by a petitioner that is subject to the H-1B
cap, they can still file such petition for you after you obtain your cap-exempt H-1B status, as
long as the petition can prove that you can reasonably and concurrently perform the work
described in each employer's respective positions. 11
The most important thing you must keep in mind is that you have to maintain this cap-
exempt H-1B status. In other words, your concurrent H-1B may be revoked by the USCIS if you
fail to maintain the cap-exempt H-1B status. 12
Conclusion
Not being selected in H-1B lottery is not the end of your American journey. There are
still other opportunities among which you can compare and find out the best one for you. Also
keep in mind to seek for professional and experienced opinion before making any decision.
1 8 CFR §214.2(h)(8)(iii)(F).
2 Immigration and Nationality Act (“INA”) §214(g)(5)(A).
3 20 U.S.C. §1001(a), Higher Education Act of 1965. See also 80 F.R. 81900, Dec. 31, 2015, which states that
“Notably, this definition does not include for-profit institutions of higher education, which would continue to be
subject to the H–1B cap.” < https://www.govinfo.gov/content/pkg/FR-2015-12-31/pdf/2015-32666.pdf >, last
visited on Apr. 6, 2023.
4 INA §214(g)(5)(A).
5 Matter of L-P-S-[redacted], ID# 666710 (AAO Oct. 20. 2017).
6 INA §214(g)(5)(B).
7 8 CFR §214.2(h)(8)(ii)(F)(3) and §214.2(h)(19)(iii)(C).
8 8 CFR 214.2(h)(8)(iii)(F)(4).
9 Id. See also Adjudicator’s Field Manual, USCIS, < https://ailalink.aila.org/file.aspx?id=84078 > last visited on
Apr. 6, 2023. It states that “the burden is on the petitioner to establish that that there is a logical nexus between the
work predominately performed by the beneficiary and the normal mission of the qualifying entity. Petitioners must
therefore demonstrate how the beneficiary’s duties are directly and predominately related to, and in furtherance of,
the normal, primary or essential purpose, mission, objectives or function of the qualifying institution, namely, higher
education or nonprofit or governmental research.”
10 8 CFR 214.2(h)(8)(iii)(F)(6).
11 Id.
12 Id.
Disclaimer:
This article contains information on legal issues and is not a substitute for legal advice from a
qualified attorney licensed in the appropriate jurisdiction.