USCIS POLICY MEMORANDUM GIVING DEFERENCE TO PRIOR H-1B CAP EXEMPTION DETERMINATION

An Intermim Policy Memorandum (PM) issued on April 28, 2011 by USCIS establishes interim guidance to give deference to prior H-1B cap exemption determinations for nonprofit entities made by USCIS since June 6, 2006. Recently USCIS officers have denied H-1B cap-exemption to a few institutions that were previously accepted as cap-exempt according to the guidelines. The hassle of proving cap exemption for each adjudicator and having different adjudicators reaching different conclusion was truly burdening cap-exempt employers.
After many complaints to USCIS about this issue, it is currently reviewing its overall 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 which basically state that if USCIS previously approved the cap exemption for an institution, it will continue to do so or give deference to the prior determination of it was made after June 6, 2006 (Date of the prior memo).