Proving Third-Party Affiliation for H-1B Cap Exemption

For employers seeking an H-1B cap exemption, proving a third-party affiliation is crucial when a third-party employer employs the H-1B worker but will perform duties benefiting a cap-exempt institution, such as a university or nonprofit research organization. This article explains the key steps involved in demonstrating a valid affiliation.

1. Show a Nexus Between Work and Mission – To qualify for a cap exemption, the third-party employer must prove that the H-1B worker’s duties directly support or further the mission of the cap-exempt institution. The work should have a clear and logical connection to the institution’s purpose, whether it’s education, research, or other qualifying functions.
   • Example: A research company hires an H-1B worker to conduct experiments in a university lab. The employer should show how the employee’s work advances the university’s research goals.
2. Provide Contracts or Agreements – Clear contracts or agreements between the third-party employer and the cap-exempt institution are essential. These documents should specify the nature of the collaboration and detail how the work supports the institution’s mission.
   • Example: A contract outlining a joint research project between a private company and a nonprofit research organization demonstrates how both parties are working toward common research objectives.
3. Demonstrate Physical Presence at the Institution – Providing proof that the H-1B worker will spend a significant amount of time at the cap-exempt institution is a strong supporting factor. Documents like work schedules or site assignments should indicate that the majority of the work will be carried out at the institution.
   • Example: An H-1B worker conducts most of their research in a university lab, using the university’s facilities and resources to further a research project.
4. Show Collaborative Projects or Research – Collaborative projects between the third-party employer and the cap-exempt institution can further support the affiliation claim. Joint research reports, publications, or co-authored papers serve as evidence of meaningful cooperation.
   • Example: A company and university work together on a research project, producing joint publications that demonstrate the mutual benefit of the collaboration and the alignment with the university’s mission.
5. Document the Worker’s Role – Detailed job descriptions, work plans, and project assignments should emphasize how the H-1B worker’s role is integral to the cap-exempt institution’s mission. This is especially important for showing that the work directly supports the institution’s goals in education or research.
   • Example: The job description highlights that the H-1B employee will focus on research for a nonprofit organization’s study, contributing directly to the institution’s mission.
6. Prove the Institution’s Cap-Exempt Status – Finally, evidence proving the institution’s Cap-exempt status must be provided. This can include documentation of the institution’s accreditation or certification as a nonprofit research organization under U.S. immigration law. By following these steps and presenting well-organized documentation, third-party employers can build a solid case for H-1B cap exemption, demonstrating that the worker’s role contributes directly to the mission of the qualifying institution.

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