For non-profit organizations involved in research activities, hiring foreign workers under the H-1B visa category can be a viable path to access specialized skills and expertise. However, navigating the complexities of H-1B regulations is essential to ensure compliance and maximize the chances of a successful application. Below are some of the considerations non-profit employers must keep in mind to qualify under the definition of 8 CFR 214.2 (h) (19) (iii) (C).
The H-1B visa allows U.S. employers to temporarily employ foreign workers in specialty occupations. To qualify for H-1B sponsorship, the position must be a specialty occupation. This typically means the job requires a bachelor's degree or higher in a specific field. Non-profits should ensure that the role being offered aligns with these requirements and that the foreign worker possesses the necessary qualifications.
Non-profit organizations conducting research can qualify for this visa category, but they must meet specific criteria set forth by the U.S. Citizenship and Immigration Services (USCIS).
Employers must demonstrate that they are a bona fide non-profit organization primarily engaged in research. This can include academic institutions, research foundations, and other entities that are not primarily profit-driven. Evidence such as IRS 501(c)(3) status or similar designations should be provided to establish credibility.
While many nonprofits conduct research to support their mission or objectives, USCIS can question whether research is the primary activity. 8 CFR 214.2 (h) (19) (iii) (C) outlines the criteria for non-profit research organizations seeking to sponsor H-1B workers as follows:
A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a federal, state, or local entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities;
Non-profit employers should prepare comprehensive documentation of their research activities. This may include the employer’s articles of incorporation to be sure research is discussed as an activity, and the website and/or annual report for discussion of research activities. Moreover, research proposals, ongoing projects, and outcomes that highlight the significance and impact of their work would be beneficial.
Non-profit employers engaged in research activities have valuable opportunities to hire foreign talent through the H-1B visa program. By understanding the specific requirements set forth in 8 CFR 214.2 (h) (19) (iii) (C) and preparing thorough documentation, non-profits can effectively navigate the H-1B process. This not only supports the growth of the organization but also contributes to the advancement of research in vital fields.
The above has been provided by Clark Lau LLC Partner Magaly R. Cheng for educational purposes only. To see whether this applies to you, feel free to contact Clark Lau LLC.