The Art & Importance of Filing Cap–
Exempt H-1B Petitions for School Teachers
Click to view PDF from The Texas Paralegal Journal, Fall 2011 Issue (starts on Pg. 16)
To this day the school year calendar influences my life. While having left school for several years, I have friends who are teachers, colleagues who are pursuing higher education, and many acquaintances who share about their children’s activities. I can track certain life events based on whether they occurred during finals, or over the summer. August signals the beginning of a new year, not January, or October. October as the beginning of a new year may sound odd. However, for the purpose of H-1B visas, October 1 is the beginning of the fiscal year, and this creates problems when schools and school districts seek
to employ foreign nationals as members of the schools’ teams of educators. A classroom cannot go unstaffed until October 1, which is why the submission of cap exempt H-1B petitions becomes beneficial.
The H-1B visa is a temporary nonimmigrant visa for persons working in a specialty occupation, fashion model of distinguished merit and ability or person providing a service related to Department of Defense cooperative research and development project or co-production project. A specialty occupation is one
that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the U.S. Employers (petitioners) file H-1B petitions on behalf of their foreign national employee (beneficiary). A statutory limit of 65,000 has been set for H-1B visas for each fiscal year. Subtracted from this number are free trade visas for individuals from Chile and
Singapore resulting in an available 58,200 H-1B visas for employers to utilize to bring highly qualified foreign nationals to work in the U.S. each year.
The numerical cap is filled in the order that the petitions are filed. In addition to the cap, there are other
limits on the H-1B visa. An H-1B visa is valid for three years with the possibility of an extension for an additional three years. Additionally, the employer is limited as to when it can petition for the foreign national, and when it can have the foreign national begin work. April 1 is the first day that an H-1B petition may be filed for the fiscal year that begins on October 1.
Historically more H-1B petitions are filed than available visas. In the early 2000s, the cap was reached on the first day of filing. The first date that an employee may begin work is the next October 1. However, some positions that qualify as H-1B specialty occupations are exempt from the numerical cap. Cap exempt positions include the first 20,000 approvals of individuals who have earned a U.S. master’s degree or higher; and foreign nationals who are beneficiaries of employment offers at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations. A petition submitted by a qualified petitioner should not be subject to the numerical cap if the offered position is a part of a collaboration between the petitioner and an institution of higher education that is exempt under the numerical cap.
An institution of higher education is defined as an educational institution in any state that admits as regular students only persons having a certificate of graduation from a school providing secondary
education, or the recognized equivalent of such a certification. A petitioner who seeks to file a cap
exempt petition must show that it has an affiliation or relation to an institution of higher education. The entity must meet a three-prong test which includes showing (1) shared ownership by the same board or
federation; (2) operation by an institution of higher education; or (3) attachment to an institution of higher education as a member, branch, cooperative, or subsidiary.
Exemption from the numerical cap has a double benefit; first even if the cap is exceeded, petitions that qualify for an exemption can be approved, and second the start date for employment does not have to coincide with the beginning of the fiscal year. Petitioners who have an affiliation with an institution of higher education can hire teachers with start dates corresponding to the school calendar rather than the fiscal year set by the United States Customs and Immigration Service (USCIS). Additionally, qualifying
petitioners have more certainty as employers. Whether H-1B visas are available at the time when a classroom needs to be staffed is not a concern. When students need a qualified teacher, a teacher can be hired.
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The most appropriate term to describe the approval of numerical cap exempt H-1B visas for schools and school districts is “uncertain”. While many times petitions are approved, frequently USCIS sends Requests for Evidence (RFE), and sometimes petitions that seem identical receive different treatment. The best practice to prevent RFEs and denials is to submit petitions with evidence showing that the petitioner precisely meets the requirements for exemption from the numerical cap. Evidence correlating to each element must be submitted. A recent decision denying the cap exempt status of a petition sought by a teaching hospital notes that the petitioner failed to demonstrate that the institution with which it is claimed affiliation qualifies as an institution of higher education. In that case, the institution was a state university.
Although it seems apparent that this institution would qualify under the definition of an institution of higher education, the Administrative Appeals Office (AAO) wanted demonstrative evidence. Evidence to this effect could be obtained from the institution’s website. The same decision also states that the
place of performance of the job duties is the paramount factor in determining whether a petitioner qualifies for an exemption from the numerical cap. Job duties must be performed at a qualifying
nonprofit organization. Evidence submitted with the petitions should emphasize the school or school district is connected or associated with an institution of higher education through shared ownership or control by the same board or federation, that it is operated by an institution of higher education or attached to an institution of higher education as a member, branch cooperative, or subsidiary. As evidence, petitioner should provide a copy of an affiliation agreement between the institution of higher education and the qualifying entity outlining each party’s duties and responsibilities; or documentation that the institution of higher education and the qualifying entity are jointly managed and controlled.
The recent decision speaks to a complication in the interpretation of the law regarding cap exempt positions. In the same decision the AAO states that there is no requirement that a beneficiary work in
the actual program that is administered and managed jointly by the institution of higher education15 and that the analysis of program participation will only take place when it has been determined that the beneficiary will be employed at an institution of higher education or an affiliated nonprofit entity. The
language regarding the analysis of program participation comes from a memo from Michael Aytes, Associate Director for Domestic Operations of USCIS that was aimed at providing guidance on the proper handling of cap exempt H-1B petitions.
In the memo a discussion of the Congressional intent to exempt from the H-1B cap certain alien workers who could provide direct contributions to the U.S. through their work on behalf of institutions of higher education and related nonprofit entities, and the effect corresponding effect that qualifying institutions would have access to continuous supply of H-1B workers without numerical limitation. The Aytes Memo also indicated that whether a position qualified as cap exempt was not just based on where the position was located, but whether the beneficiary was working in the jointly administered program. Although the Aytes Memo is widely used for guidance, the language regarding direct involvement in the jointly administered program is not part of the law itself.
Regardless , for petitions to have a higher level of success it seems to be the safest practice for petitions to include evidence that addresses the most stringent requirement – the evidence that the teacher is directly involved in the program which affiliates the school or school district with the institution of higher education. Evidence of this could include brochures about joint program, information from both the institution of higher education’s and the petitioner’s websites. Additional potential exhibits to include are copies of enrollment records for the program, receipts from enrolled parties, and a completed registration form for the program.
Educators are talented and often undervalued professionals. For better or worse, the education that a student receives colors their perception of the world and influences their preparedness for the future. Students deserve to have qualified professionals at the head of their classrooms, and schools and school districts need to have the certainty that they will be able to secure staff that meets their highest standards. Using the cap exempt H-1B petitions schools and school districts can hire foreign national educational professionals without concern for the number of visas available or restrictions on the beneficiary’s start date.
Many schools and school districts have existing relationships with institutions of higher education that make the school or school district eligible to pursue this course of action.
Originally posted in Texas Paralegal Journal. Article written by: Mehron Azarmehr of Azarmehr & Associates, P.C. in Austin, and Marcela Evansis with Sharp, Peterchuck & Evans in Dallas.
