H-1B Visa Cap-Exempt Affiliation to Include Connected, Operated, Associated and Attached Institutions
August 2010 - AAO: The AAO recently expanded the definition of institutions that qualify for cap exemption with respect to H-1B visas. Cap exemptions typically affect hospitals, physicians, and medical institutions seeking to obtain H-1B visas for health care workers. In order to qualify for cap exemption, the petitioner has to show that it is a non-profit organization affiliated with an educational institution. Recently, the USCIS interpreted "affiliation" very narrowly and denied H-1B visa applications where the petitioner could not prove that the petitioning facility and the educational institution were connected through shared ownership or control by the same board.
In this decision, the AAO overruled and overturned the USCIS’ narrow interpretation of the law. According to the AAO, the cap exemption requirement can be met if a non-profit entity can establish one or more of the following:
a. Connected or associated with an institution of higher education, through shared ownership or control by the same board or federation;
b. Operated by an institution of higher education; or
c. Attached to an institution of higher learning as a member, branch, cooperative or subsidiary.
Under this definition, it is expected that the USCIS will approve more cap-exempt H-1B applications in the future.
