By |2011-02-09T14:29:27+00:00February 9th, 2011|Categories: Visas - H-1b, L-1, E, O, TN|Tags: , , , , , , , , |

The H-1b is the most widely used nonimmigrant status for employment in the U.S. It is also the nonimmigrant status with the most costly government fees for employers, including a “training fee” of $750 for employers with 25 or fewer employees or $1500 for employers with more than 25 employees. The training fee is designed to fund training and education programs of the Dept. of Labor and National Science Foundation. Since the H-1b training fee was added to the law more than twelve years ago, some employers have been exempt from the fee: nonprofit research organizations or governmental research organizations, institutions of higher education, and nonprofit entities affiliated or related to an institution of higher education.  Some hospitals have been able to claim the fee exemption based upon being “affiliated or related” to institutions of higher education.  However, the regulations define an affiliated or related organization as “a non-profit entity (including but not limited to hospitals or medical research institutions) that is connected or associated with an institution of higher education” in one of three ways: Through 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. Two years after the H-1b training fee (and fee exemption) was added to the law, Congress expanded the list of exempt organizations to also include primary and secondary educational institutions and nonprofit entities which engage in established curriculum-related clinical training of students at an institution of higher education. This expansion of exempt organizations to include nonprofit entities that engage in curriculum-related clinical training is especially important to hospitals now because of the recent trend of the USCIS (California Service Center) on H-1b cases for hospitals.  Historically, the USCIS has treated hospitals as [...]


By |2011-01-28T16:54:57+00:00January 28th, 2011|Categories: Visas - H-1b, L-1, E, O, TN|Tags: , , , |

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 [...]

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