Today USCIS announced that in light of recent complaints regarding changes in adjudication standards with regard to H-1B cap exemptions for non-profit entities related to institutions of higher education, that it will respect prior cap-exempt designations while it revisits the issue.

In a press release, USCIS stated “Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit 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 – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.”

In order to receive the benefit of the prior determination, H-1B Visa Petitioners should provide USCIS with the following evidence:

  • A copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments)
  • A copy of the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006,
  • Copies of any documentation that was submitted in support of the claimed cap exemption.
  • A statement signed by the responsible officer attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasizes that these measures will only remain in place until additional guidance to petetitioners can be drafted and disseminated. USCIS promised to engage stakeholders in the process of reviewing current practice and developing new adjudication standards.

Stay tuned for more developments on this important issue.