The USCIS has announced that it has reached the H-1b cap for fiscal year 2011. As such, all H-1b petitions subject to the H-1b cap are not eligible for filing until April 1, 2011 with start dates of October 1, 2011. However, there are some employers that are exempt from the H-1b cap and can file throughout the year: non-profit research organizations, governmental research organizations, institutions of higher education, and non-profit organizations “affiliated or related” to an institution of higher education. Since the cap exemption was added to the law in 2000, some hospitals have been exempt based upon their affiliation or relation to an institution of higher education. In some cases, the affiliation has been based upon a jointly-administered program where the hospital provides clinical training for health-care workers (nurses, medical technologists, physicians, etc.) enrolled at that university. Recently the California Service Center of the USCIS (which now has exclusive jurisdiction for all cap exempt filings) seems to be stricter in its analysis of cap exemption for hospitals. There has not been any change in the law to prompt the strict scrutiny by the California Service Center. A few months ago, the Administrative Appeals Office ruled that a hospital that provided clinical training for nurses enrolled at an institution of higher education but was a corporation independent of the institution of higher education was not eligible for the cap exempt. However, this decision is non-precedent (applying only to that case) and not binding on the USCIS. In fact, the AAO issued an opinion four years ago that ruled just the opposite on the cap exemption issue. In that case involving a school, the AAO found that there was no legal affiliation but yet ruled that the school was exempt from the H-1b cap because it was involved in a [...]
An article in today's Washington Post highlights a new emerging trend in immigration -- foreign professionals with degrees in math, science, and special education are turning to teaching as a way to work legally in the US. These highly educated teachers fill a much needed employment gap caused by retiring teachers. Because many school districts have affiliations with colleges and universities and are non-profits, potential teachers are able to obtain cap-exempt H-1b visas to work provided they meet state licensing requirements for teachers. http://www.washingtonpost.com/wp-dyn/content/article/2008/09/14/AR2008091400020.html Posted by: Katie Jacob, Esq.