No H-1B Visa Lottery Necessary for Institutes of Higher Education, Affiliated Non-Profits, and Government Agencies for Research

By Jessabelle M. Koppelman, Esq. and Julie Oliver-Zhang, Esq.

If you have the right employer sponsor, you can apply for an H1b visa anytime of the year and have no need to win a spot in the H-1B lottery. Every year, USCIS sets aside 85,000 H-1B visas that are subject to the lottery process. But did you know that some organizations are exempt from the cap? Qualifying organizations do not need to undergo random selection to compete for limited H1b visas. Indeed, federal law allows certain organizations to forego the lottery process, specifically:

  1. Institutions of higher education;
  2. Non-profit organizations related to or affiliated with an institution of higher education;
  3. Non-profit research organizations; and
  4. Government research organizations.

See INA § 214(g)(5)(A)-(B).

Determining if your organization is exempt from the H-1B visa cap can be tricky. Let’s take a look at some of the fundamental characteristics of institutions of higher education and related or affiliated non-profits.

Institution of Higher Education

USCIS relies on the Higher Education Act of 1965’s definition of “institution of higher education.” Under the Act, key characteristics of a college university are:

  • Admits students with a certificate of graduation from a school that provides secondary education, or the equivalent;
  • Authorized in the State to provide an educational program beyond secondary education;
  • Provides an educational program that awards a bachelor’s degree or provides at least a two (2) year program that is acceptable towards a bachelor’s degree;
  • Is a public or other non-profit institution; and
  • Is accredited or pre-accredited.

Related to or Affiliated

The definition of an institute of higher education is clearly outlined, but how USCIS determines that a non-profit is “related to or affiliated” with such institutes is not as clear. To qualify for an H1b visa cap exemption, a non-profit petitioner can demonstrate that they are affiliated or related to an institution of higher education if they can prove at least one of the below prerequisites. Generally, that the non-profit is:

  • Associated through mutual ownership or control by the same board or federation;
  • Is operated by an institution of higher education; or
  • Is attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

Non-profits need to provide proof that they qualify for this exemption. Some evidence that USCIS may consider includes but is not limited to, By-Laws and Articles of Incorporation, IRS 501(c)(3) Designation Letter, documentation listing the mutual Board of Directors members, and agreements between the non-profit and institute.

Oliver-Zhang Law’s immigration attorneys recognize that the H-1B visa process can be confusing. That’s why our professionals are committed to guiding you every step of the way. We even provide free immigration consultations for individuals and companies that want to learn more about H-1B visas.

Contact us today to inquire about our immigration services. Call our experienced H1B attorneys ready to provide you with the best services at (202) 643-1110 or email us at [email protected]. We look forward to working with you.


Dependents of H-1B Visa Holders are Permitted to Enter and Remain in the United States

By Jessabelle M. Koppelman


The H-1B visa registration period is open and ready for entries to the H1b lottery! The online account creation process began on February 21st for Fiscal Year 2023. This temporary employment program allows foreign nationals to join the U.S. workforce in a variety of fields. Past H-1B visa holders have had the opportunity to work at some of the top companies in the U.S., such as Ernst & Young, Facebook, IBM, Google, Microsoft, Amazon, and more. Another benefit of the H-1B visa program is that an H-1B worker can bring their family with them to the United States. USCIS allows the visa holder’s spouse and children to enter and stay in the U.S.


Specifically, approved H-1B beneficiaries can request that their spouses and unmarried children under the age of twenty-one (21) obtain H-4 status. H-4 status allows these dependent family members to stay with the H-1B visa worker in the U.S. Below are some important things to note about H-4 status.

  • Employment for H-4 Dependents: Generally, spouses of H-1B visa holders are not authorized
    to work in the U.S. However, there are two (2) instances where the dependent may apply for
    employment authorization through Form I-765, Application for Employment Authorization. H-4
    dependent spouses may be permitted to work in the U.S. if the H-1B visa holder:
    • Is the principal beneficiary of an approved Immigration Petition for Alien Worker (Form
      I-140); or
    • Was granted “H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).” This means that the H-1B worker has been granted an extension of stay beyond the six (6) year period because their employer has filed Form I-140 or permanent labor certification if a year has passed since the filing.

      Please note that the H-4 dependent spouse is not authorized to start work until USCIS approves Form I-765.
  • Duration of Stay: H-4 status relies on the H-1B visa holder’s standing. Thus, H-4 status terminates when the worker’s H-1B status terminates. H-1B visas are valid for up to three (3) years and may be extended for an additional three (3) years. Six (6) years in the maximum duration period for an H-1B visa holder.

    With the H-1B visa, foreign nationals do not have to choose between working in the U.S. and being with their families. H-1B season is here and moving quickly. To learn more about important dates and steps, click here.

    It is best to consult a professional to help you navigate the H-1B visa process. Oliver-Zhang Law is here to help you every step of the way. Our immigration lawyers will work hard to help you secure an H-1B visa and are available to assist you with your other immigration needs. Call us today at (202) 643-1110 or email us at [email protected] for a free immigration consultation. We service employers and individuals in the Virginia, Maryland, District of
    Columbia, and Washington state areas, as well as nationwide.

H-1B Visa Denial Rates Are at an All Time Low

By Jessabelle M. Koppelman, Esq.

During the Trump Administration, we witnessed H-1B visa denial rates skyrocket with the passage of restrictive immigration policies. For example, former President Trump implemented policy instructing USCIS officers to stop giving deference to previously approved petitions when reviewing H1b visa extensions. Fortunately, President Biden has rescinded this policy during his administration

As some Trump immigration policies phase out, USCIS has drastically reduced H1b visa denials. Forbes reported that for fiscal year (“FY”) 2021, the denial rate fell to 4% for new H1b visa petitions. This trend is great news for U.S. companies looking to temporarily employ foreign nationals as diversifying your work force can lead to greater results and new ideas. Let’s take a look at how these numbers changed:

From FY 2017 to FY 2020, the average denial rate for new H1b visa petitions was just over 17%.
For FY 2018, denial rates rose all the way up to 24%.

FISCAL YEARDENIAL RATE
202013%
201921%
201824%
201713%

These numbers are high compared to the Obama Administration’s initial H1b visa denial rates.

FISCAL YEARDENIAL RATE
201610%
20156%
20148%
20137%

The same pattern is also true for continuing employment petitions (extensions for previously approved visas) as the denial rate was only 2% for FY 2021 – much lower than previous years.

FISCAL YEARDENIAL RATE
20207%
201912%
201812%
20175%

We recently saw less interest in the temporary work program. For FY 2021, USCIS received 274,237 H1b visa registrations. This number rose to 308,613 for FY 2022. The global pandemic also greatly hindered employment-based immigration positions.

The Biden Administration is taking steps towards reforming the H1b visa program. On January 21, 2022, they announced that the U.S. Department of Homeland Security expanded the list of degrees included in the STEM field that qualify for the Optional Practical Training program. To read how this expansion positively impacts H1B visas, click here.  

With H-1B visa petition submissions returning to normal, it is imperative that your initial application is in good condition. Our experienced immigration lawyers are here to assist you with the H1b visa process and the best legal services with dedicated attorneys. Oliver-Zhang law offers free immigration consultations. To speak with one of our immigration attorneys, please email us at [email protected]  or call us at 202-643-1110. H1b account registration has already begun, so call us today!