Stephen M. Perlitsh P.C.
49 West 45th Street, Floor 6
New York, NY 10036
Phone:
Fax:
Email: stephen@perlitsh.com
3. H-1b Cap Issues
The USCIS can only approve 65,000 H-1b petitions per year. However, certain employers are able to have their petition not count against the 65,000 cap.
The following entities may qualify for an exemption from the H-1B cap:
1. An employer that is a primary or a secondary institution of higher education as defined in 20 U.S.C. §1001 (a) of the Higher Education Act of 1965 and 8 CFR 214.2(h) (19) (iii).
2. A non-profit entity related to or affiliated with any such institution.
3. A non-profit entity which engages in established curriculum-related clinical training of students registered at any such institution.
4. A non-profit research organization or governmental research organization, as defined under 8 CFR 214.2(h) (19) (iii).
There is a tremendous amount of uncertainty as to whether certain organizations are exempt from the H-1b cap. Section 214.2(h) (19) (iii) (B), the applicable provision of law on this issue defines an affiliate related to a nonprofit entity that is deemed as an exempt organization as follows:
“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, cooperative, or subsidiary.”
Please note that the parenthesis are included in the statute.
Numerous hospitals have affiliations and relationships with medical schools. You should determine whether your facility has an affiliation or relationship and whether it meets the statutory guidelines.
If your employer does qualify for the exemption, they must provide a copy of the exempt status as evidenced by a certificate or a letter issued in accordance with section 501 (c) (3), (c) (4), or (c) (6) of the Internal Revenue Code of 1986, as well as documentation establishing the appropriate affiliation, relationship or other reasons why the exemption is claimed.
There are more questions than answers to numerous issues surrounding the H-1b cap. For example, there is no clear definition as to what the USCIS considers a related facility.
Additionally, if an individual whose H was with a facility that claimed an exemption, is now moving to a non-exempt facility, will their H be approved with an October start date or July start date? Will they be deemed in status during this interim period? USCIS has been inconsistent on the adjudication of these cases. However, based on recent adjudications by USCIS, cases which fall into this category which were filed after the cap was reached, were returned. Cases filed with October start dates, when the beneficiary’s present H -1b status expired in June, were approved with an October start date without an extension of status or employment authorization with the individual being deemed out of status from July.
The press release regarding these issues does not appear to differentiate between individuals presently in H-1b status who were exempted from the cap, and those who were counted against the cap who are now switching to a non-exempt facility. The press release appears to allow for the petitions to be approvable with a pre-October start date. However Immigration regulations state that if an individual’s H was exempted from the cap, they have to compete for the new set of H numbers and if the cap was reached, their H could only be approved with an October start date, as USCIS has exhausted the number of H’s for the 2005 fiscal year.
Last Updated: November 24, 2005