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Qualifying Program Participants Through Affiliation With Institutions Of Higher Education

by Maria M. Cordon

I.                     Introduction:

 

Petitioners seeking an exemption for their employees from the numerical limits imposed by statute[1] for H-1B non-immigrants must prove that they are eligible under the law.    This practice advisory addresses some issues raised in a non-precedent decision Matter of [Name not Provided],  File No. EAC06-216-52028 (AAO Sept. 8, 2006)  (H-1B Numerical Exemption granted). Although the decision is not binding on U.S. Citizenship and Immigration Services (the “Service”), it created  alternatives  that did not exist  before the case was decided because the exemption in this case was not due to the traditional definition of exemption which exempts the institution, this decision exempted the program participants. 

II.          Background:

 The applicable statute reads as follows:

(g)  Temporary workers and trainees; limitation on numbers:                                                         

(5) the numerical limitations contained in paragraph (1)(a) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 1101(a)(15)(h)(i)(b) of this title who—

(A) is employed (or has received an offer of employment) at an institution of higher education (as defined in section 1001(a) of Title 20), or a related or affiliated nonprofit entities

            Immigration and Nationality Act (INA)  § 214(g)(5) (2006).

Institutions of Higher Education:

            Institution of higher education is defined by the aforementioned statute as an educational institution in any state that:

(1)  admits as regular students only persons having a certificate of graduation from a school providing secondary education or the recognized equivalent of such a certificate;

(2)  is legally authorized within such a State to provide a program of  education beyond secondary education;

(3)  provides an educational program for which the institution awards a  bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;

(4)  is a public or other nonprofit institution, and

(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is a satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

(b)  Additional institutions included

For purposes of this chapter, other than subchapter IV, the term "institution of higher education" also includes--

(1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a) of this section; and

(2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1) of this section admits as regular persons who are beyond the age of compulsory school attendance in the State in which the institution is located.

            20 U.S.C. § 1001 (a)

            Thus, any public or private college or university would meet the statutory definition of institution of higher education. 

Rationale for Receiving an Exemption from H-1B Cap:

  When Congress enacted the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), it sought to strike a balance between two concerns among its constituents:  unemployment and the need to remain competitive in the twenty-first century by both producing and attracting creative talent.    INA section 214(g)(5)(A) specifically exempts  an  H-1B beneficiary who is  employed (or has received an offer of employment) at an institution of higher education  or a related or affiliated nonprofit entity.   There are no regulations that  define any of the terms dealing with the H-1B cap. However, the Senate Report that accompanied the bill that was enacted into AC21 states:

This section exempts from the numerical limitation (1) individuals who are employed or receive offers of employment from an institution of higher education, affiliated entity, nonprofit research organization or governmental research organization and (2) individuals who have a petition filed between 90 and 180 days after receiving a master's degree or higher from a U.S. institution of higher education.  The principal reason for the first exemption is that by virtue of what they are doing, people working in universities are necessarily immediately contributing to educating Americans.  The more highly qualified educators in specialty occupations we have in this country, the more Americans we will have ready to take positions in these fields upon completion of their education. 

S. Rep. No. 106-260, at 21-22 (2000).

   Senate Report explicitly states that individuals who are employed or receive offers of employment from an institution of higher education are necessarily immediately contributing to educating Americans. Elementary and secondary school teachers working for qualifying schools   whose educational policies include  fostering relations with institutions of higher education to improve educational systems and processes, are part of the U.S. university system and innovative infrastructure  that ensures that  American competitiveness will continue to  be second to none. 

Construing the statute to apply to beneficiaries participating in jointly managed programs between institutions of higher education and elementary and secondary schools that have created academic affiliations or partnerships with universities and colleges to educate and prepare teachers gives a rational, rather than an arbitrary,  interpretation of to the statute by allowing “highly qualified” teachers to educate U.S. students.  As a result of having more highly qualified teachers, more Americans will be prepared to attend institutions of higher education, which in turn results in: “more Americans” being “ready to take positions in these [specialty] fields upon completion of their education.”    

Related to or Affiliated:

            Part C  Item 2 of Form I-129  H-1B Data Collection and Filing Fee Exemption Supplement (I-129 HDC)  asks whether the employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education as such institutions are defined in the Higher Education Act of 1965, section 101(a), 20 U.S.C., section 1001(a).

The H-1B cap exemption statute does not contain a definition of   "affiliated" or "related" to an institution of higher education.  For fee exemption purposes, the regulations do provide some guidance for defining an affiliated or related nonprofit entity:

"[a] nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary."

 

            8 C.F.R.  § 214.2(h)(19)(iii)(B).

Since the wording in the H-1B cap exemption is identical to the wording in the H-1B fee exemption,    on June 6, 2006 USCIS issued a memorandum  stating that it would use the definition contained   in chapter 8 C.F.R.  §214.2(h)(19)(iii)(B) when adjudicating H-1B petitions requesting exemptions from the numerical H-1B cap by claiming to be   affiliated or related to an institution of Higher Education. The memorandum was entitled “Guidance Regarding Eligibility for Exemption from the H-1B Cap based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub. Law 106-313).

  The Aytes Memorandum instructs adjudicators to apply the same definition of affiliated non-profit   institution in the fee exemption provision contained in   8 C.F.R. §214.2(h)(19)(iii)(B) to the numerical exemption.   The memorandum explains USCIS’ interpretation of:

 

I.          “employed (or has received an offer of employment) at”
II.          “an institution of higher education or related or affiliated non-profit entity”
III.          “a nonprofit research organization or governmental research organization.”

 

The Aytes Memorandum states that Congress deemed certain institutions worthy of an H-1B cap exemption because of the direct benefits they provide to the United States and states that:  [c]ongressional intent was  to exempt from the H-1B cap certain alien workers who could provide direct contributions to the United States  through their work on behalf of institutions of higher education, non-profit research organization or a governmental research organization.”  Institutions of higher education, related or affiliated nonprofit entities, non-profit research organizations, or a governmental research organization are all included in the definition of “Qualifying  Institutions.”

The Aytes Memorandum expands the regulation pertaining to the numerical H-1B cap exemption from non-profit to other types of organizations   so long as they are “related to” or “affiliated with” a Qualifying Institution.

The Aytes Memorandum instructs the Service that for numerical exemption purposes "Related to" or "affiliated with" means the entity is:

(a)                  Connected or associated with the institution of higher education through shared ownership or control  by a board or federation operated by the institution of higher education, or

(b)                 Attached to the institution of higher education as a member, branch, cooperative,  or 

(c)                  a subsidiary.

(Emphasis added)

The Aytes  memorandum did not further define the word “affiliated with” or “related to.”  Words such as “shared ownership, control, operated, attached, member, branch, cooperative, or subsidiary” were not addressed.     This definition gap was addressed in Matter of [Name not Provided],  File No. EAC06-216-52028.  Based upon the Aytes Memorandum the  AAO  found that  petitioner met the third prong of 8 C.F.R. §214.2(h)(19)(iii)(B).    

In its decision the AAO states that one of the essential purposes of institutions of higher education in the State of Texas is to train primary and secondary school teachers. The AAO further found that the providing a numerical exemption from the H-1B cap was consistent with the language of 8 C.F.R. §214.2(h)(19)(iii)(B) and the intent of AC21 because  it limited the exemption to those programs that directly and predominantly furthered  the essential purpose of institutions of the of higher education.   It made it very clear that the numerical exemption is limited to those of petitioner’s employees who are directly employed in or through a jointly managed program that predominantly furthers the essential purposes of the institution of higher education and the exemption cannot be claimed by any other of petitioner’s employees. The petitioner in this decision was not a non-profit institution it was an independent school district.[2]

Even though this is a non-precedent decision, it assists the practitioner when deciding case strategy because it provides a roadmap of what needs to be done in a case.   The following paragraphs attempt to address some of the issues that might arise during the course of representation.

III.   Case Strategies and Options:

                      How do you go about qualifying the petitioner?

            To qualify participants for the decision holds that it must meet three requirements:  #1)  the program directly and predominantly further the essential purposes  of the  institution of higher education; #2)   the program is  controlled by the institution of higher education; #3) only program participants are eligible for an  H-1B exempt number.   The decision is silent with regards to whether the jointly managed program has to meet any other   applicable  government regulations or definitions of control.   The decision also allows other non-qualifying participants to jointly operate this program so long as the institution of higher education   retains control of the program.  For example, an existing alternative certification program that does not currently have an affiliation with a university can form one. Both   parties can enter into an agreement that provides  that classes will  be held at the alternative certification program site and  that some classes  will be  taught by the alternative certification program instructor  and others will be taught  by the institution of higher education’s education department.    The  parties can come to an  agreement on how to divide the tuition monies, tuition costs,  and other matters.   Alternatively, university counsel can create one master agreement and use it  for all alternative certification programs. This is routinely done with sponsored research so  complex issues can be  handled in a standardized manner.    Control by the institution of higher education could be demonstrated by the fact that the institution of higher  education determines the program’s admission criteria,  grade point average,  course content, attendance, and graduation requirements.  The ACP program and the university can jointly agree on policies and procedures.  The institution of higher education, the alternative certification program, and the school district can also jointly agree whether an intern participating in their jointly managed program is eligible for certification.   Since the holding in that case requires that the program be controlled by the institution of higher education, the decision will rest on a case by case determination by the Service.  This is a win-win solution that allows existing alternative certification programs to continue to operate profitably, allows the institution of higher education to have a larger number of students without having to invest in additional staff or classrooms, and schools to have teachers who can begin to work in August.

          Can the holding in this decision be applied in other contexts?

            There is nothing in the decision that precludes it from being applied in other jointly managed programs controlled by an institution of higher education   if   the program directly and predominantly further the essential purposes  of the  institution of higher education.   One of the essential purposes of an institution of higher education is to conduct research, educate, and train students so they can become knowledge workers.   This decision actually  facilitates   licensing and training in some occupations because it makes entry into the U.S. more feasible and gives greater flexibility in coordinating licensing examination dates, fingerprinting,  and  internship requirements  so long as the employer is participating in a jointly managed training program with an institution of higher education in the U.S.  that   directly and predominantly furthers  the essential purposes  of the institution of higher education. The issue there will always be whether the petitioner is willing to petition and commit to   paying a salary for a beneficiary who   has not  yet passed  applicable state and Federal licensing examinations.  

          What happens  once when the beneficiary completes the program?

            One of Murphy’s laws states that:    “Every solution creates new problems.”   This is true here.    Since the H-1B numerical exemption runs with the program, when the beneficiary completes the program, unless the beneficiary qualifies for another or different exemption under of the § 214(g)(5) of the Immigration and Nationality Act,    the beneficiary  loses  his or her right to a numerically-exempt H-1B. Nowhere in the decision does it hold that a beneficiary is entitled to the  H-1B cap- exemption continues as is the case with a   J-waivered physician which are exempt for all purposes.    If the beneficiary is not eligible for a cap-exempt H-1B, he or she would not be able to extend their numerically-exempt H-1B  and would have to file a new petition for an H-1B  number   as described under INA  § 214(g)(1) with a start date of Oct. 01.    This raises several legal issues illustrated by the following example: 

 

            Assume beneficiary enters the U.S. with a petition start date of July 15.  Since beneficiary is only entitled to one-year in H-1B status because he or she only has a probationary teaching certificate,[3]  the petition validity period would end on July 14. What will the beneficiary do from July 14 to October 1?  The beneficiary cannot continue to work or live legally in the U.S.  unless the beneficiary extends or changes  his or her status.  

            The best case scenario in this example would be one where the program end date is Sept. 30 and where the beneficiary completes all examinations and other  pertinent  requirements  by April  so that he or she can  show that they will qualify  for a three – year petition.  The beneficiary would then remain eligible for an extension of his or her exempt H-1B   until September 30 which would allow him or her to continue to work[4]  and live legally in the U.S.  Beneficiary’s dependents   would also   be eligible to extend their status.  The new petition for a cap-subject H-1B could then be filed as close to April 1 as possible to obtain one of the 65,000 H-1Bs.

            Although this solution is more complicated and expensive than filing one petition with a cap-subject H-1B number, this decision provides numerous  advantages to all parties involved:  it allows for alternative certification programs to continue to operate and prepare interns to teach so long as their programs are controlled by an institution of higher education, it  allows highly qualified  teacher interns graduating from these jointly managed programs to fill much needed teaching positions that  is able to start to work at any time,  qualifying schools can now  count on having a highly qualified teacher   available at the beginning of the school year  and not in October as had been the case in previous years, having these  highly qualified teachers provides federal funding to schools under the No Child Left Behind Act,  and with careful planning it allows beneficiaries and their families to live, work, and  remain in status at all times during the process. 


1INA § 214(g)(1) imposes a limit on the number of certain H-1B approvals permitted in each fiscal year and provides as follows:

The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)-

(A) under section 101(a)(15)(H)(i)(b), may not exceed—

(i) 65,000 in each fiscal year before fiscal year 1999;

(ii) 115,000 in fiscal year 1999;

(iii) 115,000 in fiscal year 2000;

(iv) 195,000 in fiscal year 2001;

(v) 195,000 in fiscal year 2002;

(vi)  195,000 in fiscal year 2003 and

(vii) 65,000 in each succeeding fiscal year

I.N.A. § 214(g)(1) (2006).

 

2 The author gratefully acknowledges Ms. Naomi Schorr’s  contribution  and comments in regards to this issue.

3 INS Addresses H-1Bs and Licensing”  Posted on  AILA Infonet at Doc. No. 01112131 (Nov. 21, 2001).

4(20)  A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(13), (b)(14), (b) (16), and (b) (19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to §§214.2 or 214.6 of this chapter.  These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning the date of the expiration of the authorized period of stay.  Such authorization shall be subject to any condition and limitations noted on the initial authorization.  However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.

8 CFR §274a.12(a)20


About The Author

Maria M. Cordon is president and shareholder of Maria M. Cordon, P.C., a law firm representing small to medium-size businesses and individuals in immigration and customs and border protection matters. She also serves as legal advisor in immigration matters to the Consulate of Guatemala. Ms. Cordon is a magna cum laude graduate of Duke University, earned her law degree from Southern Methodist University School of Law, is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization, and a Member of the College of the State Bar of Texas. She was born in Guatemala, is fluent in French and Spanish, and has a working knowledge of Italian and Portuguese. Admitted to Bar, 1994, Texas and U.S. District Court, Southern District of Texas, U.S. Court of Appeals for the Fifth Circuit, and the Court of International Trade.


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