CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics.

They contacted our office in late of October to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was already reached. Our client was very disappointed and thought they would have to wait until April 1, 2013. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue). At that point our client thought it was impossible to file at this point.

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment. We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on November 13, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on November 27, 2012. He can now work for his employer for three years on an H-1B status starting November 27, 2012.

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The Cap

H-1B petitions per year are capped at 65,000, with an extra 20,000 for those who are petitioning someone with a U.S. earned master’s or higher degree. These cap numbers only apply to initial H-1B filings. Thus, H-1B extensions and transfers are not subject to the cap. April 1 of each year is the earliest that an H-1B petitioner can file an initial cap-subject filing. A few years ago, this quota was filled on the first day. Applications outnumbered the quota. The US Citizenship and Icemmigration Service (USCIS) resorted to a lottery system. Thus an employer may have filed at the earliest possible time and still got rejected. This year, the quote was filled by July, merely two months from April 1. A lot of people are thus wondering if there is anyway an employer can file an initial H-1B petition without having to wait for April 1, 2013.

Cap-Exempt

Other than extensions and transfers, there are other ways where a petitioner gets exempted from the cap. A beneficiary of employment petitions from an institution of higher education, or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations are not subject to the cap. Thus, for these employers, H-1B petitions could be filed all year round, regardless of whether the cap is closed.

Institution of Higher Education

By law, an institution of higher education is defined as one which: 1) admits students who have completed secondary education; 2) is licensed to provide education beyond secondary school; 3) provides education programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees; 4) is a public or nonprofit institution; and 5) is accredited or has been granted pre-accreditation status by a recognized accrediting agency. Each of these elements should be met to be cap-exempt.

Primary or Secondary Education Schools

Based on statutory language and legislative history on the definition of “institutions of higher education,” primary or secondary education schools are not within this definition, and if the argument for making these schools cap-exempt is solely based on including them within the definition of an “institution of higher education,” the USCIS will not find the petition cap-exempt.

Related or Affiliated Nonprofit Entity

However, primary or secondary schools can still meet the cap-exempt requirement through the second prong of the exemption category, that of the “related or affiliated nonprofit entity” (with an institution of higher education).

In filing the H-1B cap-exempt petition, the cover letter should demonstrate how the petition is cap-exempt by explaining how the petitioner, beneficiary, line of work, and how they fit the exemption clause and the entities covered. Citing specific language from two important documents on this issue, the 2006 Aytes Memo on H-1B Cap Exemption and the Administrative Appeals Office (AAO) 2006 Texas decision (EAC 06 216 52028) is a must in arguing whether the petitioner is cap-exempt, especially if one is using the “related or affiliated” argument.

The AAO case mentioned (2006 EAC 06 216 52028) has been one of the most cited sources for “related or affiliated” cap-exempt based H-1B petitions. This case addressed the issue of whether a Texas nonprofit public school district as the petitioner was cap exempt. The USCIS in Vermont initially denied the case and one of the grounds was that the petition was subject to the cap. After appeal, the AAO granted the H-1B, finding that the school’s Teachertrak program is related or affiliated with an institution of higher education. The AAO provided citable language, stating that in order to demonstrate that the petitioner is an affiliated or related nonprofit entity, it should show one or more of the following: a) shared ownership or control by the same board or federation; b) the petitioner is operated by an institution of higher education; or; c) the petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. The AAO found that the petitioner in this case met the third prong, that of a member, branch, cooperative, or subsidiary, and thus made a finding that it was related or affiliated with an institution of higher education.

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CASE: H-1B Visa Petition
PETITIONER:  Hospital / Medical Research Center
BENEFICIARY: Strategic Planning Analyst
ISSUES: Cap-Exempt, Research Organization

Our client is a large hospital and medical research center located in Columbus, OH. They contacted our office in the middle of June to seek legal assistance from our office for their foreign employee. The beneficiary obtained her MBA degree in the United States. The proffered position for the Beneficiary is a strategic planning analyst. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Business related curriculum or its equivalent.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was reached.  Our client was very disappointed and thought they would have to wait until April 1, 2013. We told our client that we can argue that they are qualified for cap-exempt petitions and emphasize that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Cases have gone both ways for hospitals, but we thought that if the research aspect of their work is highlighted, that chances of approval are high.

INA Section 214(g)(5) says “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

According to the June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on the Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), it outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).  Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Our office argued that the Petitioner was primarily engaged in applied research, and was thus qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Once retained, our office filed the H-1B visa petition with various supporting documents on June 28, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on July 13, 2012.  She can now work for her employer for three years on an H-1B status starting October 1, 2012.  She will continue to work there on an OPT in the meantime.

FREE CONSULTATIONS

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

For other H-1B Success Stories, please click here.

For other Success Stories, please click here.

Also feel free to contact our office anytime for free consultations.

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