Mark A Ivener, A Law Corporation

USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation

U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2011, that it is reviewing its policy on H-1B cap exemptions for nonprofit 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 nonprofit 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 as of March 18 and during the interim period, USCIS will defer to prior determinations made since June 6, 2006, that a nonprofit 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. USCIS noted, however, that the burden remains on the petitioner to show that its organization previously received approvals of its request for an H-1B cap exemption on this basis.

Petitioners may satisfy this burden by providing USCIS with evidence, such as a copy of the previously approved cap-exempt petition (i.e., a Petition for a Nonimmigrant Worker (Form I-129) and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, along with any documentation that was submitted in support of the claimed cap exemption. USCIS suggests that petitioners also include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasized that these measures will only remain in place on an interim basis.

Evidence of previous determinations of cap exemption will be considered on a case-by-case basis only when submitted with an 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. USCIS accordingly advised petitioners not to send separate correspondence containing their cap-exemption evidence on this issue.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.