The current H-1B employer of the potential new hire is an institution of higher education. Does this matter?

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Yes. It is important to determine if the foreign worker has been previously counted toward the H-1B numerical quota. Certain H-1B employers are exempt from the H-1B quota limits. These employers include certain institutions of higher education; nonprofit organizations/entities related to or affiliated with an institution of higher education; nonprofit research organizations; and governmental research organizations. If a foreign worker was not previously counted towards the H-1B quota because they were employed by an exempt employer, the foreign worker will be subject to the H-1B quota limits for the H-1B COE case if the new employer is a not an exempt employer as listed above. If there are H-1B visa numbers available, this is not a big issue. However if the H-1B numbers have been exhausted for the fiscal year, an H-1B COE case in this situation may not be feasible since an H-1B number is not available.

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