USCIS BACKS DOWN ON CONTROVERSIAL TEACHING HOSPITALS H-1B CAP INTERPRETATION

Posted on: March 17th, 2011
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USCIS is retreating from its recently changed policy challenging the affiliations of America’s teaching hospitals with America’s medical schools. For the 10+ years that non-profit institutions could claim H-1B cap exemptions if they had affiliations or were otherwise related to colleges or universities, hospitals that trained doctors in their residency and fellowship programs – programs that are usually run in close coordination with a medical school – have been able to work outside the normal H-1B caps. And that makes sense since we depend on these teaching hospitals to supply this country with our doctors. That’s why Medicare actually underwrites the salaries paid to medical residents. Plus, we’ve got a massive shortage of doctors so subjecting teaching hospitals to H-1B caps works against resolving this crisis.

After complaints started quickly coming in from around the country, USCIS has apparently gotten the message and announced that while it works out a more formal policy position, it will revert back to previous policy. Here is the announcement:

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.