In its recent update to H-1B program requirements, DHS revised its regulation on H-1B CAP-exemptions for beneficiaries who are staffed at universities and certain nonprofits.
H-1B CAP exemption allows an employer to file an H-1B CAP case on behalf of an employee at any time in the fiscal year, outside of the usual annual limits on H-1Bs imposed by the H-1B CAP. H-1B CAP exemption is particularly useful for employers seeking to employ beneficiaries in the healthcare industry, where staffing needs are particularly urgent.
DHS is revising its CAP-exempt regulation to note that beneficiaries qualify for H-1B cap exemption when they spend at least half of their time providing essential work to a qualifying institution.
Previously, the regulation required a beneficiary to spend the majority of their time performing duties at a qualifying institution.
First, the revision reduces the time requirement by noting that the employee need only spend 50% of their time providing work to a qualifying institution.
Second, the revision allows for remote work, including telehealth, to count toward an employee’s time requirement for CAP-exemption, while the previous regulation required an employee’s physical presence at a qualifying institution.
In DHS’s final rule, the
agency acknowledges that its CAP-exempt regulation revision may slightly expand
who is eligible for the cap exemption. DHS’s intention is that the revision will
increase flexibility for employers and beneficiaries, as well as better
represent modern employment situations.
