H-1B Cap Exemptions Based on Relation or Affiliation

USCIS has announced that it is reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. The Agency is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication.

The burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education. Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption.

USCIS also suggests that petitioners include a statement explaining that their organization was approved as cap-exempt since June 6, 2006. USCIS emphasizes that these measures will only remain in place on an interim basis.