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H1B Visa Lawyer: Who is exempt from the Cap – Affiliation with or relation to an institution of higher education

There is less than one week left before the first day of H1B filing madness. Our office is super busy with cases to complete before the deadline. One question that comes up often is the H1B exemption for affiliation with or relation to an institution of higher education. Here is an update to an article from the previosu season. 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.

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 USCIS issued guidance in a memo on June 6, 2006 regarding H1B petitions that are eligible for exemptions from the H1B numerical limits (H1B cap).

The Memo addressed the fact that the word “at” is used regarding the exemption, rather than “by,” as mentioned above. The USCIS acknowledged that this reflects a congressional intent to exempt foreign nationals who are not employed by exempt institutions, but who, nonetheless, perform employment that directly and predominantly furthers the essential purposes of such qualifying institutions. Third-party employers, therefore, can utilize this exemption if a foreign national is physically working at an exempt institution and has a job that “directly and predominately furthers the normal, primary or essential purpose, mission, objectives or function of the qualifying institution.” The third-party employer must show a logical nexus between the work of the beneficiary and the normal work of the qualifying institution.

The USCIS noted that, in many situations, qualifying institutions have contracts with third-party companies for onsite placement of workers. These employees perform jobs that otherwise would be performed by employees of the qualifying institution. Thus, they are doing work that was important to Congress in creating the H1B exemptions.

If you have any questions about H1B exemptions, feel free to email us.