H-1B Cap Exemptions Based on Relation or Affiliation

In the past few months, the United States Citizenship & Immigration Services (USCIS) has issued decisions which narrow and challenge the long standing H-1B cap-exempt status of numerous teaching hospitals which are affiliated with medical schools or other institutions of higher education. Such decisions jeopardize the ability to attract and sponsor foreign medical graduates and other professionals who provide much needed healthcare services to our communities.  As a result of the uncertainty faced by many teaching hospitals, USCIS issued the following update on March 16, 2011:

“U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that 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 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.”

While we welcome the efforts being made by USCIS to review its policy and address the public’s concern, the above referenced update does not provide clarification for employers who have never previously sought to claim the H-1B cap exemption based on relation or affiliation.  Until USCIS provides further guidance or its adjudicators return to the longstanding practice of granting H-1B cap exempt status to teaching hospitals that are affiliated with medical schools or other institutions of higher education, the petitioner and beneficiary must proceed with caution.

JSBarkats PLLC lawyers  have extensive experience dealing with these issues and are available to assist you.  Please contact Eva Frecker at 646.502.7001 or by email at efrecker@jsbarkats.com.

Eva Frecker is the head of the immigration practice at the law firm of JSBarkats.  JSBarkats is based in New York City and provides legal advice to corporations and individuals with respect to nonimmigrant and immigrant visa options.  We have extensive experience representing clients from the healthcare and academic sectors and securing temporary and permanent visas for foreign medical graduates, scholars, scientists, and allied healthcare professionals.