On May 9, 2011 AILA Liaison sent a memorandum to USCIS Director Alejandro Mayorkas addressing the definition of “affiliated or related nonprofit entity” for H-1B cap-exemption. Over the recent couple of year USCIS has substantially restricted the interpretation of that definition based on the restrictive fee-exemption law. However, AILA proposes a more reasonable and flexible approach to the definition, which is supported by the Immigration and Nationality Act definitions of “affiliated” or “related” that is much less restrictive. AILA proposes the following definitions of institution that are “affiliated” or “related” to a nonprofit or educational entity:
- Has been accredited by a federal, state or local educational accrediting agency for an educational purpose based on its affiliation or relationship with an institution of higher education. For example, any nonprofit entity that sponsors a Graduate Medical Education program accredited by the Accreditation Council for Graduate Medical Education (ACGME) should qualify for cap exemption; or
- Has been recognized or approved as related to or affiliated with an institution of higher education by another federal or state agency for any purpose. For example, any nonprofit entity sponsoring an “approved medical residency program” for purposes of Medicare reimbursement under 42 C.F.R. §413.75(b) should qualify for cap exemption; or
- Has entered into a currently valid affiliation agreement with an institution of higher education that defines the respective rights and responsibilities of cooperating entities; or
- Is otherwise related to or affiliated with an institution of higher education based on the totality of facts presented by the petitioner and consistent with the plain meaning of the terms “related” or “affiliated.”
I hope there are some reasonable people at USCIS that will accept a more liberal and fair interpretation of these terms, because the tough situation now is that many organizations that should have been exempted are facing scrutiny from USCIS adjudicators over this issue.