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Immigration Help for Hospitals: USCIS Issues Memorandum on H-1B Cap Exemption

On March 16, 2011, the U.S. Citizenship and Immigration Services (“USCIS”) issued a memorandum addressing the exemption of certain tax-exempt entities from the annual quota on H-1B petitions, known as the “H-1B cap.”  Under current immigration law, non-profit entities that are related to or affiliated with an institution of higher education are exempt from the H-1B cap, meaning that they can obtain approvals of H-1B petitions even if the annual quota on H-1B petitions has been reached.  This exemption has proved particularly useful for hospitals seeking to employ foreign physicians and for many residency programs.

Until recently, the USCIS routinely approved cap-exempt H-1B petitions filed by hospitals based on contractual affiliations with institutions of higher education, such as agreements to provide training to medical students or residents.  However, in early 2011, the USCIS began denying petitions that were filed as cap-exempt unless the petitioner could show a direct ownership relationship between it and an educational institution.  Most hospitals could not meet this requirement.

In the March 16 memo, the USCIS stated 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.  In the meantime, entities that have received approvals of H-1B petitions on a cap-exempt basis since June 6, 2006, will continue to be treated as cap-exempt absent a significant change in circumstances or clear error in the prior adjudication.  The USCIS stressed that these are only interim measures, but also indicated that it will engage the public in developing any future guidance.

A copy of the USCIS memorandum can be found here.

©2022 von Briesen & Roper, s.cNational Law Review, Volume I, Number 78
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About this Author

Kenneth Hoogstra, von Briesen Roper Law Firm, Milwaukee, Employment and Tax Law Attorney
Attorney

Ken Hoogstra maintains an extensive employee benefits practice, advising clients on such matters as ERISA compliance for group health, welfare and pension plans, and the design and administration of qualified retirement plans and nonqualified deferred compensation plans. Ken places a particular focus on the implementation, design and administration of employee stock ownership plans (“ESOPs”). He also has significant experience working on executive compensation arrangements, including compliance with tax laws such as Internal Revenue Code Sections 162(m), 280G and 409A,...

414-287-1376
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