Most H-1Bs in the U.S. are subject to the Cap system, meaning that an H-1B application must be submitted on and before certain dates (usually during the first week of April) and be selected by a lottery system before the USCIS gives a review for approval of the visa. Maybe, it wasn’t clear, but most H-1B Applicants actually apply to a lottery. Some applicants win, and many lose. However, that is just for H-1B Cap. For many teachers, an easy to remember formula is: Cap = Lottery.
However, some schools may be qualified as a Cap-Exempt employer. Cap-Exempt = No Lottery.
Cap-Exempt H-1B Filing can be filed throughout the year without going through the lottery system. Cap-Exempt filings are better for Schools and Teachers, since it provides a higher likelihood of approval. Additionally, without a time constraint, Cap-Exempt H-1B Teachers would be able to start school whenever the school year begins, whereas a Cap-Subject H-1B would have to wait until April 1 to Start the Filing and October 1 to begin working (which is already after the start of many school years).
How can a School be Cap-Exempt?
To qualify as a cap-exempt organization, the school/employer must show that it is one of the following:
- Be an institute of higher education
- Be a governmental research center, or
- Be a nonprofit entity affiliated with institutes of higher education or government research centers
For a school, having programs like AP Classes, an early start program, and a student-teacher agreement would all affiliate the school with an institute of higher education. As stated above, the best H-1B option is an H-1B Employer that falls under Cap-Exempt (Cap-Exempt = No Lottery).
Are there issues with J-1s filing for H-1B?
Whether subject to Cap or not, it is critical to carefully plan the timeline for H-1B applications along with the J-1 waiver. Many J-1 Teachers have the 2-year home residency requirement, and many countries have a streamlined No Objection Statement (NOS) Process. Timing is important since teachers and schools want the teachers to be able to work at the beginning of the following school year.
The Fickey Martinez Law Firm works closely with schools and teachers to find the best solution for the parties and make sure applications are filed in a timely manner. Please contact our office and talk to our attorneys for your immigration issues and options.
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