USCIS to review its H1B cap exemptions for non-profit entities

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, an official announcement said.

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 organisation 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," USCIS said.

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.

Furthermore, USCIS suggests that petitioners include a statement attesting that their organisation was approved as cap-exempt since June 6, 2006, the statement said.
These measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance, USCIS emphasised.

As mandated by the Congress, USCIS can only issue 65,000 H-1B visas; besides an additional 20,000 for those having US master's degrees or higher are exempt from this cap.