This article addresses the cap exemption available to employers who wish to employ professional and skilled workers temporarily to work on projects in the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands (“CNMI”).

U.S. employers seeking to employ professionals temporarily in Guam or the CNMI can do so by filing an H-1B petition.  To be eligible for an H-1B visa, the employer must show that the position is a specialty occupation.  8 C.F.R. 214.2(h)(4)(ii) provides that a “specialty occupation” means an occupation that requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

H-1B visa holders are allowed to work in the United State for a maximum six years.  Initial admission to the United States is for three years, which can be extended for an additional three years.  H-1B visas are subject to a numerical national cap of 65,000 per fiscal year.  However, this national cap does not apply to Guam or the CNMI.

The H-2B skilled worker visa category is generally used for laborers not employed in specialty occupations.  For example, in the construction industry this may include positions like, carpenters or cement masons, and nurses are often brought under H-2B visas in the healthcare industry.  Workers can generally be brought in all industries if the need associated with these workers is temporary.  However, even where the need is not necessarily temporary, a petition may also qualify under the National Defense Appropriations Act, which allows for an otherwise qualified H-2B workers to perform certain service or labor on Guam or in the CNMI that is either (i) pursuant to any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that is directly connected to, or associated with, the military realignment occurring on Guam and the CNMI or (ii) as a health care worker at a facility that jointly serves members of the Armed Forces, dependents, and civilians on Guam or in the CNMI.

An H-2B visa is generally granted for a one-year period, that may be extended yearly two times to allow for a maximum of 3 years within the United states under H-2B status.  H-2B visas are generally subject to a numerical cap of 66,000 per fiscal year.  However, petitions to employ workers in Guam and the CNMI are also exempt from the national cap.

The Guam and CNMI exemptions for H-1B and H-2B visas came about because of the passage of the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229.  The Act extended the Immigration and Nationality Act (“INA”) to the CNMI, and it included a provision exempting H-1B and H-2B nonimmigrant workers from the annual national cap.  The Act has been amended several times since its enactment on May 8, 2008.  The exemption to the numerical caps for H-1B and H-2 B visas will expire in 2029.  Prior to the passage of the Act, employers on Guam and the CNMI were subject to the same filing dates as stateside companies.  this meant that Guam and CNMI companies were competing with large stateside tech and construction companies for available visas.  This is no longer a concern for Guam and CNMI companies.

There are other provisions in the immigration laws that only apply to Guam and the CNMI.  The attorneys at BK&X can advise you of these ever-changing laws and how they may affect you or your business.  Contact us today for a free consultation.

This article was authored by Mark E. Kondas.