H-1B professionals who work at following places are exempt from the H-1B numerical caps:
- Institutions of higher education or related or affiliated nonprofit entities;
- Nonprofit research organizations; or
- Governmental research organizations.
One issue in contention revolves around the definition or what is an “affiliated” nonprofit entity.
The USCIS has taken an increasingly restrictive approach about what the word “affiliated” means. Where, in the past, evidence that a research lab or a hospital had an affiliation agreement with a university was enough to satisfy this requirement, during the past year, the USCIS has issued numerous Requests for Evidence demanding to see prove the two organizations were commonly owned. As a result, many employers chose to submit their H-1B petitions under the numerical caps rather than challenge USCIS’ interpretation of the word “affiliated” in AC-21 in Federal Court.
On March 16, the USCIS announced that “it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education.” The agency further announced it would “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.”
Although this is welcome development, USCIS made clear that this is an “interim” policy. One can only hope that the agency will not return to its previous restrictive attitude.
May 2011