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H1B Cap Update May 18, 2010 – Who is exempt form the Cap?

As of May 14, 2010, approximately 19,000 H-1B cap-subject petitions were received. Additionally, USCIS has received 8,100 H-1B petitions for aliens with advanced degrees.

What organizations are cap exempt for example?

Nonprofit Organizations “Affiliated” with Institutions of Higher Education Are Cap Exempt
Nonprofit organizations affiliated with institutions of higher education are H-1B cap exempt. INA § 214(g)(5) provides:
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 is employed (or has received an offer of employment) at
(A) 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.

What Are “Affiliated” or “Related” Nonprofit Organizations?
What does “affiliated” with or “related” to an institution of higher education mean? Though not addressed in the statute, the regulations do provide some guidance for “affiliation” and “related” in the rules for H-1B fee exemption. For fee purposes, 8 CFR § 214.2(h)(19)(iii)(B), provides some guidance for defining an affiliated or related nonprofit entity:
A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperate, or subsidiary.

The student regulations offer some guidance on what “affiliated” means. On-campus employment, we are told at 8 CFR § 214.2(f)(9)(i), includes off-campus locations “educationally affiliated with the school.” In that case, the educational affiliation must be associated with school’s “established curriculum,” or related to contractually funded research projects at the post graduate level.

most primary and secondary schools are training grounds for Student Teachers, that is, university or college students who earn academic credit for the time that they spend at primary and secondary school locations teaching students.

We have also found that the universities and colleges who are sending these students to host primary and secondary schools have formal affiliation agreements or contracts with those schools or with the school district. Those agreements spell out who will “rate” the student teacher’s performance, the number of university credits involved, responsibilities for supervision, liability provisions, terms for insurance to be purchased by the college or university to cover the student teacher, background clearances, and so forth. We believe that these agreements support a claim to “affiliation” with the institution of higher education.

Thus, in our view, many nonprofit primary and secondary schools are in fact affiliated with institutions of higher education, and therefore, employees of those schools are exempt from the H-1B cap. This includes not just teachers, but all professional staff members, including administrative and financial personnel, school psychologists, and guidance counselors.

This post is based on the article AC21 and the H-1B Cap, by Naomi Schorr and Nathan A. Waxman.