H-1B Visa Cap-Exempt Affiliation to Include Connected, Operated, Associated and Attached Institutions

August 2010 - AAO: The AAO recently expanded the definition of institutions that qualify for cap exemption with respect to H-1B visas. Cap exemptions typically affect hospitals, physicians, and medical institutions seeking to obtain H-1B visas for health care workers. In order to qualify for cap exemption, the petitioner has to show that it is a non-profit organization affiliated with an educational institution. Recently, the USCIS interpreted "affiliation" very narrowly and denied H-1B visa applications where the petitioner could not prove that the petitioning facility and the educational institution were connected through shared ownership or control by the same board.

In this decision, the AAO overruled and overturned the USCIS’ narrow interpretation of the law. According to the AAO, the cap exemption requirement can be met if a non-profit entity can establish one or more of the following:

a. Connected or associated with an institution of higher education, through shared ownership or control by the same board or federation;

b. Operated by an institution of higher education; or

c. Attached to an institution of higher learning as a member, branch, cooperative or subsidiary.

Under this definition, it is expected that the USCIS will approve more cap-exempt H-1B applications in the future.

pdf [Read the Cap Exempt Affiliation Decision]

J-1 Waiver Transfer Extenuating Circumstances, Employer Pays Less Than Contract Salary/Prevailing Wage

September 8, 2010 - AAO: J-1 Waiver physicians may apply for a J-1 waiver transfer of their H-1B visas if the employer pays less than the contract salary or prevailing wage. This case is an appeal on behalf of a J-1 waiver physician who held an H-1B visa while completing his J-1 visa waiver service with his first employer in a medically underserved area (HPSA). After starting his employment, his employer reduced his salary to an amount which was below the salary in the contract and the prevailing wage submitted on the ETA 9035. The physician then applied to transfer his H-1B visa to another employer on the basis that the previous employer was neither living up to the contract salary or prevailing wage. The application was initially rejected by the USCIS on the basis that the physician was not able to show the required extenuating circumstances for a J-1 waiver transfer. An appeal of that decision was then filed.

On appeal, the AAO overturned the USCIS decision and granted the J-1 Waiver/H-1B visa transfer. In reaching that decision, the AAO ruled that extenuating circumstances exist which justify an H-1B/J-1 waiver transfer where a physician is paid a salary that is lower than that specified in the contract or the ETA 9035's prevailing wage requirement. Based on the decision, physicians who are being underpaid are able to meet the extenuating circumstances requirement necessary for a physician J-1 visa waiver transfer.

pdf [Read Prevailing Wage Extenuating Circumstances Decision]

Removal/Deportation-USICE Issues Directive on Priorities for Deportation and Removal of Aliens

September 2010 - The USCIS has issued a memorandum outlining the U.S. Immigration and Customs Enforcement’s (ICE) priorities with respect to the removal and deportation of aliens, allocation of resources and priorities with respect to the aliens to be removed. Under this directive, USCIS will prioritize the deportation and removal of aliens in the following order:

1. Aliens who pose a danger to national security or risk to public safety

2. Recent illegal entrants, and

3. Aliens who are fugitives or otherwise obstruct immigration controls,

Under each category, the USICE lists specific classes of aliens to be targeted for removal in order of priority. The memorandum also describes the appropriate use of USICE’s detention resources as well as when prosecution of certain aliens is warranted.

pdf [Review the Directive on Deportation and Removal of Aliens]

USCIS Issues New Citizenship/Naturalization Fact Sheet With Eligibility Requirements

September 20, 2010 - The USCIS has issued an updated citizenship/naturalization Fact Sheet. The Fact Sheet describes the naturalization process as well as recent statistics with respect to naturalization. It describes the general eligibility requirements for naturalization; requirements for those in the military; spouses of U.S. citizens stationed abroad; children under 18 years of age and the naturalization interview process. It also summarizes naturalization statistics for the years 2000 to 2009.

pdf [Review the USCIS Naturalization Fact Sheet]

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