Cap Exempt Research Organization H-1B Approval for Research Foundation Petitioner in New York and Foundation Relations Development Specialist Beneficiary in Vancouver Canada

CASE: H-1B Visa Petition
PETITIONER: Research Foundation in New York, NY
BENEFICIARY: Canadian Foundation Relations Development Specialist in Vancouver, B.C., Canada
ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research / grant making foundations in the United States. Its New York office contacted our office in late of September to seek legal assistance from our office for their foreign employee. The beneficiary previously worked as a coordinator and an acting officer of a large hospital in Canada and gained experience in development and fundraising database management.

The beneficiary currently is in Vancouver, B.C., Canada. The Beneficiary has a Bachelor’s and Master’s degree from the United States. The proffered position for the Beneficiary is a Foundation Relations Development Specialist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2014 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Under the provisions of INA Section 214(g)(5), “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

The June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).  Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Thus, our office argued that our client-company is qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Once retained, our office filed the H-1B visa petition with various supporting documents on October 7, 2013 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on October 10, 2013.  She can now work for her employer for three years on an H-1B status starting October 14, 2013.

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