USCIS Clarifies Exemptions to the H-1B Cap

The United States Citizenship and Immigration Services (USCIS) has recently released a memo regarding the H-1B cap exemptions for those employed or seeking employment at an institution of higher education, a related or affiliated non-profit entity, nonprofit research organization, or a governmental research organization.  The memo clarified key terms relating to the exemption.
 
The USCIS has clarified exactly what is meant by “employed or has received an offer of employment at” an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.  Under this clause, qualifying institutions AND institutions that are not qualifying both have claimed the exemption from the cap.  The petitioners who are not a qualifying institution based the exemption on the fact that the alien will be performing all or part of his/her duties at a qualifying institution.  The USCIS has determined, based on Congressional intent, aliens that are not employed directly by qualifying institutions are exempt from the H-1B cap, provided that the petitioner (non qualifying institution) can show their employment promotes the purposes of the qualifying institution that they will be working at.  Therefore, petitioners who are not a qualifying institution can be exempt from the H-1B cap if they show that a connection exists between the work performed by the alien beneficiary and the work performed by the qualifying institution.

Examples:
Company X is a for-profit marketing agency, which cannot be considered a qualifying institution, but has filed an H-1B petition for one of its employees.  In the petition, the company indicated that the alien will be working at a governmental research organization, which is a qualifying institution, to further the research organizations purpose by performing similar tasks to those that are preformed by the employees of the research organization.  The alien employed by a non-qualifying institution will be exempt from the H-1B cap, since he will be working at a qualifying institution and performing the same tasks that the workers at the qualifying institution will be performing in the hopes of furthering the organization’s goals.

Company A, a for-profit research company, wants to hire an alien to work for them.  The company has an agreement with a neighboring university to allow the alien researcher use the university’s lab to perform research for the company.  Under this, the company feels the alien will be exempt from the H-1B cap.  Unfortunately, since the company is not a qualifying institution and the fact that they research performed at the university only furthers the research of the company and NOT the university’s research or purpose, the alien is not exempt from the H-1B cap.

The USCIS also defined what is meant by related or affiliated nonprofit entity and nonprofit research organization or governmental organization.  According the USCIS, in order to determine if the related or affiliated nonprofit entity is exempt, the entity must be “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.”

(06/10/2006)

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