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