A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, March 18, 2011

H-1B Cap Exemptions Based on Relation or Affiliation

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today,
in response to recent stakeholder feedback, 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. Until further guidance is
issued, USCIS is temporarily applying interim procedures to H-1B non-profit
entity petitions filed with the agency seeking an exemption from the statutory
H-1B numerical cap based on an affiliation with or relation to an institution of
higher education.

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.

The H-1B is a nonimmigrant visa that allows U.S. employers to temporarily employ
foreign workers in specialty occupations. Unless determined to be exempt, H-1B
petitions are subject to either the 65,000 statutory cap or the 20,000 statutory
visa cap exemption. By statute, H-1B visas are subject to an annual numerical
limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for
these visas filed on behalf of individuals with U.S. master's degrees or higher
are exempt from this cap. (Released by USCIS 03/16/2011)

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