USCIS examining H-1B cap exemption for non-profits affiliated with universities
March 17, 2011
USCIS announced yesterday that it is examining how it determines whether a non-profit institution affiliated with a college or university is exempt from the annual H-1B cap. See announcement. Currently the law provides that non-profit entities which are related to or affiliated with institutions of higher education are exempt from the numerical H-1B cap of 65,000 visas. Most other employers are subject to the annual H-1B cap. For those employers subject to the H-1B cap, the earliest they may file H-1B petitions for cap-subject employment is April 1, 2011, and then only for a start date no earlier than October 1, 2011. Cap-exempt employers are not subject to these filing restrictions.
This issue regarding exemption from the H-1B cap has been percolating for some time, and has become more pronounced during the economic downturn. A few years ago, USCIS issued guidance which took a much narrower view of what constitutes “related to or affiliated with” for purposes of exemption from the H-1B cap. Essentially, this guidance stated that shared “ownership” or board membership between the non-profit entity and the university in question must exist to constitute an appropriate affiliation for this purpose. Despite this guidance, USCIS continued to approved petitions as exempt from the cap where an affiliation or relationship short of this standard was met. Recently however, the Administrative Appeals Unit, which handles appeals of H-1B denials, adopted a restrictive view of exemption in a non-binding decision. More recently, following rejection of cap-exempt status by USCIS for a number of institutions previously deemed exempt from the cap, members of the Massachusetts Congressional delegation requested clarification of the USCIS position on this issue. It is likely that other interested parties made a similar request.
Perhaps in response to these inquiries, in yesterday’s announcement, USCIS indicated that employers who were previously deemed exempt from the H-1B cap will continue to enjoy cap-exempt status if they provide evidence of past petitions which were approved as exempt from the H-1B cap. The guidance also suggests that employers include an attestation to that effect with new H-1B petitions. It provides in relevant part as follows:
|
Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education. Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006. USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance. |
This is an important issue for many health care providers and other institutions which traditionally employ H-1B workers as physicians, researchers, and in other highly skilled professions. As a practical example, many residency and fellowship programs now sponsor foreign physicians in H-1B status, and most of these programs end on June 30th of each year. If a hospital no longer enjoys cap-exempt status, even assuming it is able to secure one of the limited H-1B visa slots, it may need to wait until October 1st to start a physician in H-1B status, rather than starting them on July 1st as it normally would. That can lead to a gap in employment for the institution and the H-1B physician, and potentially loss of the opportunity altogether. Physicians on J-1 waiver should remain exempt from the cap as individuals.
As noted in the guidance, this is an interim measure only. While USCIS will likely engage in notice-and-comment rulemaking on this issue, institutions previously deemed exempt from the cap should take steps to ensure that USCIS continues treating them and similar institutions as cap-exempt. Otherwise, employers who were previously treated as cap-exempt may be subject to disruptions when trying to extend the H-1B status of current employees, and may have difficulty bringing in H-1B workers in a timely manner.
Please contact Matt Raynes at our Bangor, Maine office with questions.
This alert is provided as general information, and is not a substitute for legal or other professional advice.
