March 16, 2009
Our Columbus H-1B visa lawyers recently learned that in the mad rush up to the April first filing deadline for the H-1B cap season, most employers experience an anxiety stemming from concern over whether or not USCIS will select their petitions in its lottery-like cap for the 65,000 available visas. In the storm of activity this period inspires in employers and employees, many forget to ask themselves fundamental questions about the whole process. Many companies or petitioning organizations who are hiring foreign workers should ask themselves, however, is if they are even subject to the cap at all.
Organizations that are not subject to the H-1B visa cap are called “cap-exempt.” Such organizations include governmental research organizations, non-profit research organizations, and institutes of higher education. Although many types of cap-exempt organizations are easily identifiable, many employers may be surprised to realize that their organization is also cap-exempt, or that legal arguments may be made that can convince USCIS of their cap-exempt status.
For example, the law specifically states that an employee of an “institution of higher education” is exempt from the H-1B visa cap. Immigration law references the definition of an institution of higher education found in the Higher Education Act of 1965. This means any public or private university or college that admits students with the equivalent of a high school diploma to at least a two year degree program is a cap-exempt employer.
The example of a public or private university is probably the most clear cut example of a cap-exempt employer. However, the law also states that a cap-exempt employer may be a “related” or “affiliated” non-profit organization in regards to an institute of higher education. Because of the imprecision of these terms, questions have arisen as to what organizations qualify for definition as those that are “related” or “affiliated” with an institute of higher education.
Such institutions may include hospitals, including teaching hospitals, as well as medical and other types of research institutions. Other less obvious examples may include a non-profit organization with credit-based placement for a university or college’s students. One example included a school district who hired a language teacher through a credentialing program with a local university.
To determine whether or not an organization is “affiliated” with an institute of higher education, the USCIS will consider factors including “ownership, management, previous relationships with or ties… and contractual relationships.” Employers should examine any and all connections they have with any university, college, or research institution for evidence to support an argument of affiliation. This also includes employers that otherwise would not be considered cap-exempt but for the fact that the employee performs the work at such an institution. Only an experienced H-1B visa attorney will be able to provide the counsel necessary to make this kind of a nuanced argument.
Even though the U.S. economy is in the throes of a marked slowdown, there is no indication that this year’s H-1B cap will not be met. Employers are still seeking the best and the brightest talent at rates that far outnumber the available visas. Because of this, employers with an experienced H1-B visa lawyer with whom to strategize may reduce the randomized effects of the H-1B cap lottery.