Earlier this week, we wrote about AB 2332, California's new law to grow dual language immersion programs. Today’s follow up is about the immigration tool many school districts use to staff those classrooms, and why it's under pressure.

It's the H-1B cap exemption.

Most H-1B employers must be selected in an annual lottery, and new hires can't start until October 1. That doesn't work for a district that needs a credentialed Mandarin or Korean teacher by August.
A district that qualifies as cap-exempt can file year-round, outside the lottery. The most common route is a written affiliation agreement with a college or university, where a fundamental activity of the district directly contributes to the university's education or research mission. Dual enrollment partnerships are a frequent basis.

Three things cap-exempt districts should know right now:

1️⃣ The exemption may soon be worth more. DHS has proposed a $103,265 fee on cap-subject H-1B petitions. Cap-exempt petitions would not pay it. The proposal isn't final.

2️⃣ The rules for who qualifies may change. DHS's regulatory agenda lists a rule, "Reforming the H-1B Nonimmigrant Visa Classification Program," that would revise eligibility for cap exemptions. It hasn't been published yet, so no one knows exactly what would change.

3️⃣ Cap-exempt didn't mean exempt from the $100,000 payment. Initial cap-exempt H-1B petitions for workers abroad fell 91% in the payment's first eight months, according to the Congressional Research Service. Courts now block the payment, but appeals continue.

Teachers must understand that the cap-exempt status belongs to the employer. If you've only held cap-exempt H-1B status, you generally must be selected in the lottery before moving to a district that isn't cap-exempt. Check before you accept a new offer.

What districts can do now:
• Locate your affiliation agreements and confirm they match how the partnership actually works.

• Document how your programs contribute to the university's education mission.

• Identify which current and planned dual immersion hires depend on the exemption.

• Watch for the proposed rule, and plan to comment.

AB 2332 will grow dual immersion programs. The cap exemption is one of the main ways districts staff them.

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***