H-1B For Nonprofit
- Applicant: Ms. Li
- Nationality: Chinese
- Applying For: H-1B
- Time: 3 weeks
- H-1B non-cap visa requires a research position at a non-profit organization
- Client worked for a Chamber of Commerce, which was difficult to prove it was a research position
- Was on a time crunch
The H1-B visa can seem like an incredibly great fit for recent college graduates looking to come to or stay in the United States. The H1-B visa is for people whose employers want to keep around because they have specialized degrees and knowledge in their field. However, for traditional, for-profit companies are capped on how many H1-B visas they can apply for and when they can apply for them. The rules are different for non-profits though. People often hear that nonprofits are not capped on the amount of H-1B visas they can apply for and that they can do it whenever they want, and in many cases that is true, however, there is one important stipulation that many people miss: the position that the recipient of a non-capped H-1B visa must include applied or basic research in its duties.
Unfortunately, our client Ms. Li missed this important stipulation when she heard about the lack of caps on nonprofit H-1Bs. Thus, she simply assumed she was going to qualify for a non-capped H-1B because she worked for a non-profit, a chamber of commerce within an incorporated city. She came to us for a consultation to, in theory, dot all of her I’s and cross all of her T’s, but when we started researching non-capped H-1B visas in preparation for her consultation, we found the research stipulation. So when she came to her consultation, we told her how difficult her position truly was; we gave her a lengthy checklist of things that the chamber of commerce that was employing her would have to do, things she would have to do to potentially prove that her position was a research position.
“She was devastated. She went from being certain she qualified to being certain she wouldn’t qualify. It seemed like her whole life was going to have to change. Plus, she would have likely had to remain separate from her husband, because without a visa she couldn’t travel to see him. I’m glad that we managed to work this out for her because even though it was a lot of work, it’s worth it when we can keep families together and keep a bright, young person on a positive path.” – Case Manager
Some basic questions that they would have to answer were who were their primary researchers, what had they researched in the past, what were they trying to research in the future? All of these answers were essentially non-existent with the chamber of commerce. This was devastating for her, along multiple lines. First, she wanted to keep working here in the U.S. Second, she wanted the H-1B so she could securely travel to see her husband overseas. Without it, and with her deadline of legality in the U.S. rapidly approaching, she was risking being here illegally and going even further without seeing her husband. By the time she came to us, she only had three weeks until her grace period post-graduation was up. When we finished her consultation, she left and we thought we would never see her again. However, she did come back, and when she did, she was armed with a lot of important documentation. She showed us just how serious she was. She knew just how long a shot it was to succeed, but it was her one shot and she was hoping that we would take her case. She had other lawyers tell her that her case was impossible and refuse to take her case on. If we wouldn’t help her, she would have no one. There was no way we could refuse her, so we took on her case even with the mountain of work ahead of us.
KEYS TO SUCCESS
The big key was proving that the chamber of commerce was doing research, either applied or basic. One area we focused on was the fact that since it was a federal organization that relied on grant money to continue functioning, they had secured grants from multiple organizations that funded research organizations. We included those grants in our argument to show that while one might not think of a chamber of commerce as a research institution, it was clear that other important organizations do consider them a research institution and have given them money to do their work.
We argued that the research that they do is applied research – the chamber of commerce can tell businesses about the other businesses in their area; which ones have opened, which ones have succeeded, which ones have failed – for commercial purposes to provide businesses with more information on how to be successful. It was a risky argument, but one that we felt was strong enough to make. After all, the chamber of commerce was using the same scientific approach as the National Institute of Health, an organization that has a set, standard approach to science and research that is nationally accepted.
When we sent our packet of documentation, including 33 exhibits, easily a record for an H-1B case for our firm, to the United States Citizenship and Immigration Services (USCIS), we expected a Request for Evidence (RFE). We expected them to outright reject or at least require more evidence from us about our argumentation of what should be considered science or research. However, no RFE came, but a notification of approval did! Ms. Li was free to continue working for the chamber of commerce, and she was free to travel to see her husband. In the end, her determination is what allowed her to continue living her American Dream.
*Name changed to protect client privacy