Where to File H-1B CAP Exempt Petitions For

May 24th, 2010 by Brian D. Zuccaro

Where do you file an H-1B cap exempt petition when the individual qualifes by working at a cap exempt facility rather than working for a cap exempt employer?

In short, the answer is still the California Service Center.

In a Practice Pointer found at AILA InfoNet Doc. No. 10052471, the Vermont Service Center (VSC) advises that it does not accept any cap exmpt H-1B filings. The Practice Pointer reads:

The Vermont Service Center Stakeholder Questions & Answers of April 6, 2010, discuss where to file H-1B extensions for beneficiaries working for petitioners, which are not cap exempt, but who are “employed at” cap exempt facilities. The VSC refers to the September 10, 2009, USCIS Guidance regarding the direct filing address for I-129 petitions, noting that H-1B employers filing petitions which are cap exempt must file such petitions exclusively with the California Service Center.

VSC notes that in this instance, the term “cap exempt” refers only to those petitioners who are exempt from the numerical limitations identified in 8 CFR 214.2 (h)(8)(i)(A). “Cap exempt” petitioners are those described in 8 CFR 214.2(h)(19)(iii), and include:

  • ¬†Institutions of higher education as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
  • Nonprofit organizations or entities connected or associated with institutions of higher education, as described in 8 CFR 214.2(h)(19)(iii)(B);
  • Nonprofit research organizations or governmental research organizations as defined in 8 CFR 214.2(h)(19)(iii)(C); and
  • Petitioners who otherwise would not be “cap exempt,” but will be employing the beneficiary to perform job duties at a qualifying cap exempt institution, provided that the beneficiary’s duties will directly or predominantly further the normal, primary, or essential purpose, mission, objectives or function of the qualifying cap exempt institution.

All petitions for individuals “employed at” cap exempt facilities will be rejected by the VSC, even if the beneficiary is working for a petitioner which is not cap exempt.


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