During the initial H-1B registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. If a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes. Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration.

Please note that a registration will not reflect a status of Not Selected until the conclusion of the fiscal year. In the event that USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or the advanced degree exemption allocation, USCIS will select from registrations held in reserve to meet the H-1B regular cap or advanced degree exemption allocation.

Until the prospective H-1B employers (or their legal representatives) start receiving receipt notices, and the dark clouds of uncertainty over prospective H-1B visa holders move past, the question worth asking and exploring is: “Do I still have a chance of getting an H-1B status even if my H-1B petition does not make it to the H-1B cap?”

Unfortunately, the regular (bachelor’s) H-1B cap remains at 58,200 and the master’s cap cannot accommodate more than 20,000 specialty occupation workers. However, there are certain categories of cap-exempt H-1B visas that candidates can consider. One such category is for beneficiaries of employment offers at: (1) institutions of higher education or related or affiliated nonprofit entities; or (2) nonprofit research organizations or governmental research organizations. To get a cap-exempt H-1B visa using these categories the fundamental question to ask is: whether the offer of employment is from an institution of higher education, or related or affiliated nonprofit entities, or from nonprofit research organization or governmental research organization.

For the purposes of H-1B cap exemption, the H-1B regulations have adopted the definition of institution of higher education as the definition has been set forth in section 101(a) of the Higher Education Act of 1965. The educational institution must satisfy each of the following three requirements: (1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (2) is legally authorized within such state to provide a program of education beyond secondary education; (3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree; (4) is a public or other nonprofit institution; and (5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

Assuming that an academic institution will qualify as an institution of higher education, the next two questions that have perplexed immigration practitioners (and potential H-1B employers) are:
(1) what is the difference between employed “by” and employed “at” and (2) how does one determine if the nonprofit institution is “related to or affiliated with” an institution of higher education.

The 2006 Aytes memo clarified the difference between employed “at” and employed “by”, and the purpose behind it. This memo explained that commonly, qua