H4 to H1...cap

[novice2007]

Hi experts,

Just a quickie.

When some one applies for COS from H4 to H1, and if qualified:

1) Does that person count within the annual cap ( wonder whether I am using the right vocabulary!) if the job offer is from a bank or a software comp?

2) Does that person count on annual cap if the job offer is from a non-profit organization, like the community college?

I would smile on all your replies.
Have a good one.

[txh1b]

1. Yes
2. Yes. Only higher education institutions qualify for cap exemption and community colleges are not.

[novice2007]

your opinion, please!

Thanks for the reply.

But I have a case:

A person with H4 obtained H1B out of cap (2007-08) for a public school (K-12) math teaching post recently, while staying in the US. Is this a case of fresh H1B out of cap?

Could the same be done with COS from H4 to H1B for a public school teaching post?

Do I make sense?

What's your opinion, please?

[txh1b]

Cap-exemption for secondary schools or public schools is not possible as USCIS clearly has stated it. You can google for it.

However, there are some tricks or rather exceptions. Suppose, my town has a university that has a school under its management for the children of employees and others living in that area. If this school also supports the research of a child Psychology department and study from the University, the position could qualify for cap exemption.

It may be possible that the H4->H1b COS person had a previously approved H1b that was never used and they used a remainder option to change to H1.

The following case below will provide more insight.

Administrative Appeals Office Addresses H-1B Cap Exemption for Texas Nonprofit Primary School September 2006

A nonprofit public school district in Texas filed an H-1B application on behalf of a foreign national to work as a bilingual education teacher via an alternative certification program called TeacherTrak with the US Citizenship and Immigration Services (USCIS). The USCIS denied the H-1B application on the following three grounds:

1) The H-1B cap had been hit and the public school district is not cap exempt;
2) The proffered position is not a specialty position; and
3) The foreign national is not qualified to perform services in a specialty occupation.

The case was appealed to the Administrative Appeals Office (AAO) and the AAO issued its decision on September 8, 2006. Addressing the above three grounds for denial, the AAO stated in its decision the following:

1) The record establishes that the TeacherTrak alternative certification program is managed jointly by the nonprofit school district and an institution of higher education. Therefore, the employees of the nonprofit profit primary school district who are directly involved in the jointly managed program that “directly and predominately furthers the essential purposes of the institution of higher education” (including the foreign national in this case) qualify for exemption from the H-1B cap.
It is reasonable to apply the definition of a related or affiliated nonprofit entity found in 8 CFR Section 214.2(h)(19)(iii)(B) which defines the term for the purposes of H-1B fee exemption as a nonprofit entity that is “connected or associated with an institution of higher education, through shared ownership or control by the same board or federation…or attached as a member, branch, cooperative, or subsidiary.Under 8 CFR Section 214.2(h)(19)(iii)(B), a petitioner can demonstrate that it is an affiliated or related nonprofit entity by showing one or more of the following:

The petitioner is associated with an institution of higher education through shared ownership or control by the same board or federation; or

o The petitioner is operated by an institution of higher education; or
o The petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

2) The combination of a bachelor’s degree and specialized training resulting in state certification constitutes the equivalent of a bachelor’s degree in a specific specialty. Thus, the position of a bilingual teacher can be considered a specialty occupation.
3) The record, including an educational and experience evaluation, establishes that foreign national is qualified to perform the duties of a specialty occupation.

Based on the above grounds, the AAO withdrew the decision of the USCIS and the H-1B petition was approved.

[novice2007]

Good one...

Thanks for the professional supportive document for this case.
Very useful indeed.

Regards.