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Affiliation and Relation H-1B Exceptions to Cap

01
Jan
2011

by in Immigration

U.S. Citizenship and Immigration Services (USCIS) stated earlier, in regard to comments and concerns raised, that it will review its procedures it uses in considering H-1B cap exemptions for non-profit organizations that are “related to or affiliated with an institution of higher education.”

Call to speak with a New Jersey H-1B lawyer.

Until the issue can be resolved, USCIS is in the meantime applying an interim system to H-1B non-profit entity petitions filed with the agency that ask for an exemption from the statutory H-1B numerical cap under a color of an affiliation with or relation to an institution of higher education.

From now on, during this temporary period USCIS will show deference to previous rulings made since June 6, 2006, stating that a non-profit entity is related to or affiliated with an institution of higher education – without any major changes in circumstance or plain error in the prior ruling – and, accordingly, exclude from the H-1B statutory cap. However, the onus remains on the applicant to show that its organization was previously granted approval of its request for H-1B cap exclusion as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners can attempt to meet this burden by providing the immigration service with evidence that may include a copy of the previously approved application. For example Form I-129 and relevant supporting documentation along with the previously issued approving I-797 notice sent 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.

Evidence of previous determinations of cap exemption, as discussed in this Update, will be considered on a case by case basis only when submitted with a Form I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. Petitioners are accordingly advised not to send separate correspondence containing their cap-exemption evidence to USCIS on this issue.

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