U.S.C.I.S. Seeks Comments on Its Interim Memo Regarding H-1B Cap Exemption Based On Affiliation

U.S.C.I.S. Seeks Comments on Its Interim Memo Regarding H-1B Cap Exemption Based On Affiliation

On May 2, 2011, The USCIS issued an Interim Guidance for Comment, requesting public comment on its Interim Guidance concerning claims for H-1B cap exemption, based on a non-profit petitioner’s affiliation with an institution of higher learning.

Congress has set an 85,000 H-1B cap for new H-1B petitions for each fiscal year. Beginning on April 1, 2011, the USCIS began accepting the filing of petitions for the October 1, 2011 start of the 2012 fiscal year. Typically, the H-1B cap will be exhausted before the end of each fiscal year, resulting in a time period when H-1B’s are not available. It is usually advantageous to obtain exemption from the H-1B cap, as this will allow an employee to begin work at any date, not dependent on the commencement of the fiscal year. Also, cap exemption will allow the filing and approval of a petition after the H-1B cap has been exhausted.

H-1B cap exemption is especially important for foreign physicians who have obtained graduate medical training in the U.S. while in H-1B status. These physicians have usually been H-1B cap exempt during their training, but will be subject to the H-1B cap as they complete training and enter the work field, unless they are able to work for a cap exempt employer.  Sec. 214(g) of the Immigration and Nationality Act provides a definition of a qualified H-1B cap employer:

The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who -

(A)     is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) , or a related or affiliated nonprofit entity;

The big question is: What is a “related” or “affiliated” entity? In June 2006, the USCIS issued a memo intended to clearly instruct on this issue. ([6/6, Aytes] USCIS on AC21 §103 Exemption from H-1B Cap.) Unfortunately, the Aytes memo left many unanswered questions. For several years, the USCIS did approve many H-1B cap exemptions for non-profit health care employers who demonstrated that they collaborated with colleges or universities for the purpose of providing clinical training for physicians, nurses, medical technologists, and other health profession students. A copy of a Sec. 501(c) letter showing non-profit status, and a current affiliation agreement between the health facility employer and a college or university, would suffice to prove affiliation.

Everything changed however on October 5, 2010, when the Administrative Appeals Office issued its decision in the case of a Texas acute care hospital which had sought an H-1B cap exemption for a medical technologist (case # WAC 09 059 50704). The AAO ruled that the hospital’s agreements with a local college for the purpose of operating a clinical training program for the college’s nursing students, did not qualify as an “affiliation” for the purposes of the H-1B cap exemption. As a result of the AAO decision, the entire issue of H-1B cap exemption was thrown into disarray, not only for employers similar to the Texas case, but also for residency and fellowship programs operated by hospitals.

On March 16, 2011 the USCIS issued an Interim Policy Memo where they indicated that they were reviewing their policy regarding the H-1B cap exemption. In the meantime, they indicated that they would consider and approve cap exemptions for employers who were able to provide evidence that they had previously qualified for the H-1B cap exemption, since June 6, 2006, the date of the issuance of the Aytes memo.

On April 28, 2011 the USCIS issued Additional Guidance to the Field on Giving Deference to Prior Determinations of H-1B Cap Exemption Based on Affiliation. This guidance advises adjudicators of the type of evidence they should rely on to prove a previous determination of H-1B cap exemption based on affiliation. Theses types of evidence include:

·        A copy of the previously approved petition

·        A copy of the corresponding I-797 Approval Notice

·        Documentation previously submitted with a petition

USCIS also implied that an H-1B cap exemption could be sought and potentially approved, even where there has been no previous determination, stating:

If the petitioner fails to provide evidence of one or more post-June 6, 2006 determinations of cap exemption based on affiliation but is now seeking cap exemption, CSC should make a cap exemption determination based on the current petition and the supporting documentation.

On May 2, 2011 the USCIS issued an Interim Guidance for Comment, requesting public input regarding this memo. See http://www.aila.org/content/default.aspx?docid=35267. Comments can be made to: opefeedback@uscis.dhs.gov until May 16, 2011.

Barry J. Walker
Immigration Attorney
Walker and Ungo
PO Box 1023
Tupelo, MS 38802
662.841.0629
barrywalke@gmail.com
www.walkerungo.com

Harsh BALCA decision shows need for PERM reform

In (Matter of Frontline, 4/8/11) the Board of Alien Labor Certication (BALCA) found that where the recruitment report was signed only by the attorney, without indicating that the attorney is an appropriate representative under §656.10(b)(2)(ii), that the employer failed to attest to the results of its recruitment. This BALCA decision upheld the denial of the PERM labor certification by the U.S. Department of Labor. This is another example of the harsh and arbitrary way that the U.S. Department of Labor operates the PERM process. 

PERM is the process whereby U.S. employers seek certification from the USDOL that U.S. workers are not available to fill a certain job. Once the USDOL issues a labor certification, the U.S. employer can proceed to file an immigration petition for a foreign worker. PERM is commonly used to obtain green cards for foreign physicians who are helping to fill severe medical shortages that exist in many rural parts of the United States.


The USDOL's PERM regulation and the way that the program is operated, are often arbitrary and capricious. The USDOL's prime objective is to deny PERM applications whenever possible, and often for very technical and clerical reasons. In the Matter of Frontline case, the employer's recruitment report was signed, not by the employer or the employer's authorized representative, but it was signed by the attorney. BALCA's decision rightly pointed out that the report should have been signed by the employer or its designated representative (not the attorney). However, this was a "clerical" error that could have been corrected with a remand procedure, whereby the USDOL would simply notify the employer that it needed to submit an employer signed report. 


As a result of this decision, the employer has probably lost several thousand dollars in fees and expenses, and the foreign worker has lost valuable time toward obtaining permanent residence. It would be difficult to calculate the amount of money that this has cost the U.S. economy in lost efficiency, but when multiplied over many dozens of similar results, I would estimate that the costs could be in the millions of dollars. In the PERM process, the employer is required to submit a perfect application or response to audit, without margin for human error. It is interesting to note in the Matter of Frontline case, that the USDOL, in its initial denial decision, mistakenly referred to the wrong basis for denial of the case. The USDOL then had to submit a corrected decision of denial. So, it appears that the USDOL is permitted to make any number of mistakes and is permitted the opportunity to correct them. However, well meaning U.S. employers, who are struggling to comply with the USDOL's ultra-complex regulatory scheme, are permitted no leeway whatsoever.


I have long advocated that the PERM regulation should be reformed and made more user friendly. The USDOL should be willing to allow the employer to amend or correct the PERM application and its audit response, whenever it appears that a simple clerical correction will cure the process. The USDOL can always reserve the authority to deny the opportunity for an employer to amend, whenever the USDOL believes that the labor market has not been adequately tested, or to prevent fraud. The USDOL should abandon its 1970's attitude that the U.S. worker is its sole constituency. It should recognize that U.S. employers and skilled foreign workers, working in the U.S. are also valuable contributors to the U.S. economy. In today's economy, skilled foreign workers help improve the efficiency of employers, they allow U.S. employers to obtain the skilled workers they need, and ultimately help preserve U.S. jobs. Economic studies have consistently shown that the labor market is not a 'zero-sum" game. Immigrant workers do not generally displace U.S. workers.


An excellent example of this dynamic is realized whenever a foreign physician comes to a rural community to practice medicine. The economic benefit to these communities is significant. The foreign physician and his family typically represent a high-earning family that raises the level of economic activity in the community. Also, the hiring of a new physician in a small town usually leads to the creation of multiple good-paying jobs, for nurses, medical technicians, clerical workers and others.

Launching of Physician Immigration Blog

Hello, I'm Barry Walker. I live and practice immigration law in Tupelo, Mississippi. Since 1994, my immigration law practice has been largely devoted to the representation of hospitals, clinics, physician practices and foreign medical graduates, in connection with physician immigration to the United States. Our principal clients are in Mississippi, Tennessee, Missouri and Virginia, but we represent clients from all over the U.S.

Some people might wonder how an immigration practice can exist and thrive in a rural state such as Mississippi. Actually, there are several reasons why our practice is particularly relevant to a rural state. For example, Mississippi has a large percentage of counties (60 out of 82 counties) that are full-county Health Professional Shortage Areas (according to the U.S. Department of Health and Human Services). This means that many rural counties and communities in Mississippi have a difficult time attracting and retaining U.S. born physicians. So, these communities rely heavily on foreign medical graduates to provide both primary care and to cover the specialties. When we refer to foreign medical graduates, we are referring to physicians who have been educated at medical schools outside of the U.S. However, before being licensed in the U.S. these physicians have to pass a battery of examinations and screenings. Also, almost all states require that foreign physicians must complete at least 2-3 years of advanced training in the United States, before licensing. So, whenever a patient confers with a foreign physician in a U.S. hospital or clinic, they can be confident that the physician as highly qualified and trained as U.S. born physician.


We will be posting here at least once a week, to discuss immigration issues for foreign medical graduates. Our topics will include:

• Obtaining the J-1 waiver
• Changing status from J-1 to H-1B
• Special issues for physicians who have trained as H-1B's
• H-1B cap exemptions
• Green card options

Barry J. Walker
Immigration Attorney
Walker and Ungo
PO Box 1023
Tupelo, MS 38802
662.841.0629
barrywalke@gmail.com
www.walkerungo.com