On March 16, the day before the residency match positions are announced, USCIS restored the H-1B cap exemption status to non-profit entities affiliated with institutions of higher education provided the institution has received a cap exemption after June 6, 2006.  We want to thank all of our clients for working with us on obtaining the restoration of the H-1B cap exemptions for thousands of physicians, including medical residents and fellow.  USCIS emphasizes that cases must be filed with proof a cap exemption was previously granted by filing copies of petitions and approval notices.  This measure is an interim procedure while the entire policy is being reviewed.

We particularly want to thank USCIS Director Ali Mayorkas, Barbara Velarde, Director of Service Center Operations and Dea Carpenter, Acting Chief Counsel of USCIS for their prompt and effective response which averted a health care crisis in hundreds of hospitals and community clinics throughout America.

The USCIS Press Release Follows: (click the Read More button below)

H-1B Cap Exemptions Based on Relation or Affiliation

Released: March 16, 2011

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS 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.

Effective immediately, during this interim period 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 – and, therefore, exempt from the H-1B statutory cap. However, 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 (i.e. Form I-129 and pertinent attachments) 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. Furthermore, USCIS suggests that petitioners include a statement attesting 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. USCIS will engage the public on any forthcoming guidance.

The H-1B is a nonimmigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. Unless determined to be exempt, H-1B petitions are subject to either the 65,000 statutory cap or the 20,000 statutory visa cap exemption. By statute, H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap.

Source: USCIS (external link)