On March 16, 2011, the USCIS announced that it was reviewing its policy for determining H-1B cap exemptions for nonprofit entities that are related to, or affiliated with, an institution of higher education. This review followed a series of administrative decisions denying an exemption from the H-1B cap to residence programs run by nonprofit hospitals affiliated with medical schools. Most of these programs start on July 1 and, without the cap exemption, foreign nationals ("FNs") could not participate because they would be unable to secure the required H-1B status until October 1. The net effect of these decisions was to foreclose these residency programs to any FN who needed a cap-exempt H-1B classification to participate.
On April 28, 2011, the USCIS published additional guidance for the adjudication of H-1B petitions filed by nonprofit entities claiming a cap exemption based on an affiliation with an institution of higher education. As an interim measure until the USCIS review is completed, the guidance directs adjudicators to give deference to prior cap-exempt determinations made by the USCIS since June 6, 2006. To demonstrate that an H-1B petition falls within this interim policy, the USCIS instructed sponsoring organizations to submit, among other things, a copy of a previously approved H-1B cap-exempt petition, a copy of the I-797 approval notice, or documentation submitted with a prior H-1B cap-exempt petition since June 6, 2006, that established the previous cap exemption.