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June 22, 2005

Nonprofit organizations affiliated with institutions of higher education are H-1B cap exempt

INA § 214(g)(5) provides: the numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at
(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), or a related or affiliated nonprofit entity.

So what does "affiliated" with or "related" to an institution of higher education mean? This is not addressed in the statute, however the regulations do provide some insight on the meaning of the terms "affiliation" and "related" in the rules for H-1B fee exemption at 8 CFR § 214.2(h)(19)(iii)(B); A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperate, or subsidiary.

The potential H-1B applicants are not just teachers, but all professional staff members, including administrative and financial personnel, school psychologists, and guidance counselors of nonprofit primary and secondary schools are in fact affiliated with institutions of higher education.

Posted by VisaLawyer at June 22, 2005 01:52 PM

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