• Temporary Respite for Certain H-1B Cap Exempt Employers
  • June 3, 2011 | Author: M. Terrell Menefee
  • Law Firm: Brouse McDowell A Legal Professional Association - Cleveland Office
  • On March 16, 2011, U.S. Citizenship and Immigration Services (USCIS) issued an announcement that it is reviewing the current policy regarding H-1B cap exemptions for cases filed by non-profit affiliates of institutions of higher education. Since June 6, 2006, when it issued a memorandum on the topic, USCIS had taken a broad stance on how a non-profit could be considered an affiliate of an institution of higher education under the regulations. A non-profit, like a teaching hospital, could be considered an “affiliate” if it produced evidence of a contractual relationship with an institution of higher education, like a medical school, where the two entities “cooperated” in a training program for medical residents.
     
    In late 2010, however, the Administrative Appeals Office (AAO) issued a denial of a cap exempt H-1B petition filed by a hospital claiming an affiliation with an institution of higher education. Based upon the regulations, the AAO concluded that in order to qualify for the cap exemption under the regulations as an affiliate, the petitioning non-profit must demonstrate shared ownership or control by the same board. This decision effectively narrowed the scope of what may be considered an “affiliate.”
     
    Subsequent to the AAO decision, USCIS has applied heavy scrutiny to H-1B petitions submitted as cap exempt based upon an affiliate relationship. This scrutiny led to an outcry by teaching hospitals in the Boston, Massachusetts area and congressional intervention. USCIS’ March 16, 2011 announcement indicates that USCIS will continue to accept H-1B cap exempt cases for organizations previously approved as cap exempt since June 6, 2006, while USCIS reviews the current policy. The announcement provides a temporary respite for certain non-profits who regularly use the H-1B visa category.