CASE: H-1B Change of Employer (Cap Exempt to Non Cap Exempt)
PETITIONER: Industrial Material Company
BENEFICIARY: Chinese Industrial Material Research Scientist
LOCATION: Ohio
Our client is an industrial material company focused on the production and commercialization of high-performance / non-immunogenic biomaterials for use in the medial and consumer healthcare arenas. They are located in Wooster, Ohio. They contacted our office in early January 2014 to seek legal assistance from our office for their foreign employee. The beneficiary is from China and he obtained his Master’s degree in Plant Pathology in the United States. The proffered position for the Beneficiary is an industrial material research scientist which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Science/Engineering or its equivalent.
The foreign beneficiary in this case already had his H-1B visa from his previous employer. However, his H-1B visa was not yet expired, and he wanted to extend his H-1B status on a change of employer basis. His H-1B at that time was with his first petitioner, which was a cap-exempt organization – a university.
There were articles online noting that when a change of employer is done from a cap-exempt organization to a non cap-exempt organization, that the change of employer may be subject to the cap. But there was no specific law on that. We simply based the application on the fact that it was a change of employer, and thus the petition should be exempted from the annual cap of the H-1B.
Once retained, our office filed the H-1B visa petition with various supporting documents on January 29, 2014 via regular processing. Since this petition was based on a change of employer, we argued that this petition was exempt from the annual cap of the H-1B. Thus, we could file prior to April 1.
There were no Requests for Evidence during the processing of the H-1B. Our client did not even want to do premium processing. But in approximately two weeks, our client’s H-1B Petition was approved on February 14, 2014. Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for the next three years.