The H-1B employer should be a US person or entity, i.e., an individual, partnership, corporation, or an organization that qualifies as such an entity. US branches, subsidiaries, etc., of an overseas Company can also file H1B Petitions.

US H1B employers, who meet certain requirements are exempt from the yearly quota cap of 65,000 visas. Generally, the following classes of employers are exempt from such cap:

1. Institutions of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 USC Section 1001(a);
   
   

2. Nonprofit organizations or entities related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101(a), 20 USC section 1001(a);
   
   

3. Nonprofit research organizations or governmental research organizations as defined in 8 CFR 214.2(h)(19)(iii)(C).
   

To clarify, under the definition cited above, an “Institution of higher education” is one which

• admits students having secondary education or equivalent;

• is authorized to provide a program of education beyond secondary education;

• provides an educational program for which it awards a bachelor’s degree or provides a program of not less than a 2-year duration that is acceptable for full credit toward such a degree;

• is a public or other nonprofit institution; and

• is accredited or granted pre-accreditation status by a recognized agency.

An affiliated or related nonprofit entity is “a nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.”

Further, A nonprofit research organization is defined as an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government 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.

The following classes of employers are considered “H-1B Dependent Employers”:

1. Employers with less than or equal to 25 full time employees of which more than seven are H-1B employees;

2. Employers with more than 25 but less than or equal to 50 full time employees of which more than 12 are H-1B employees;

3. Employers with more than 50 full time employees of which 15% or more are H-1B employees.

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