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

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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