USCIS has announced that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. Typical examples include teaching hospitals that are affiliated with medical schools. For many years such employers could claim H-1B cap exemption for their sponsored H-1B professionals if they had affiliations or were otherwise related to nonprofit colleges or universities. However, in the recent past, USCIS has given a strict interpretation as to whether the nonprofit was "related" to an institution of higher learning.

As the agency works towards developing new guidance, on an interim basis it will defer to agency determinations made since June 6, 2006 that a nonprofit entity is related to or affiliated with an institution of higher education, absent any significant change in circumstances or clear error in the prior adjudication. As such, these filers will remain exempt from the H-1B cap. However, USCIS made clear in a recent press release that the burden remains on the H-1B petitioner to demonstrate it has previously received H-1B cap exemptions as a nonprofit entity that is related to or affiliated with an institution of higher education.