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MUMBAI: Among the various proposals relating to the modernization of the H-1B program released by the US Department of Homeland Security recently, is a key proposal relating to non-cap H-1B visas (or H-1B cap exemptions).Annually, 65,000 H-1B cap visas are available, plus an additional 20,000 for those with a master’s degree from a US university (referred to as Masters’ cap).Sponsoring employers have to E-register and file a detailed H-1B visa application for those individuals (beneficiaries) selected in the lottery. Given the high demand, not all individuals who have been sponsored for the H-1B visa get through the random selection (lottery) process.However, some employers are able to hire foreign nationals through H-1B visas without having to go through the lottery process. These employers are typically referred to as cap-exempt H-1B employers. Such employers could be universities with affiliations with medical labs, hospitals, and research units.DHS proposes that H-1B beneficiaries who are not directly employed by qualifying institutions, organization, or entities, who equally split their time between a cap-exempt entity and a non-cap-exempt entity, may be eligible for cap exemption. Steven Brown, partner at the immigration law firm of Reddy & Neumann, points out that the agency seeks to change the phrase “the majority of” in the regulation to “at least half”. To illustrate: A beneficiary who works for a for-profit hospital and a research center would have to spend “at least half” of their time performing the job duties at the research center, whereas in the past they would have to spend “a majority of their time” at the research center. However, the work at the qualifying institution does not require a physical presence, if it can be done remotely.In other words, an H-1B visa holder, who is spending a majority of time performing his duties at the cap-exempt entity, can concurrently get a part-time job at a non-cap exempt employer without going through the lottery process. But this is dependent on the cap-exempt job remaining in place.DHS also seeks to remove the requirement that the duties ‘directly and predominately further the essential purpose, mission, objectives, or functions’ of the cap-exempt entity and replace it with a requirement that the duties ‘directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions’ of the cap-exempt entity. “The change is intended to expand cap-exempt availability when a beneficiary does work that contributes to but does not necessarily predominately further, the purpose of the cap-exempt entity. This will allow some more flexibility in this area,” states Brown. Under the proposals it is also expected that many more entities will be able to qualify for the cap-gap, even if research is not the primary activity of the entity, but it must be a fundamental activity. Currently, the proposals have been notified in the Federal Register and a 60-day window for public comments is open. The proposal would take several months to finalise and be implemented.
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