This is to update and remind all our exisiting corporate public and private school system clients of certain new trends that Yu, South & Associates have discovered during our dealings with the USCIS for the past year, to ensure your school system's continued ability to employ foreign-trained teachers.
In the past, we have consistently and successfully filed most of the H-1B cases for many school systems, both public and private, in both initial petitions and existing H-1B extensions, under the “Cap Exempt” category, in reliance of INA §214(g) (5) (A), as nonprofit entities related or affiliated with an Institute of High Education (IHE) to qualify the cap exempt status. As a result, most school systems were able to hire and place foreign-trained teachers all year round on an as needed basis, without limitations posted by the annual cap problems.
However, this privilege might not be readily available in the coming year. The problem is not because of any law changes regarding IHE or its eligibility for the exemption but the qualification of the school district’s status as an “affiliate” to the IHE for the exemption. As a result, many school districts might not be treated by the USCIS as an “affiliate” any more for the purpose of qualifying for the H-1B cap exemption for this new filing season.
Specifically, since late 2009 and through out the entire 2010 filing season, USCIS has shifted its position significantly and requested public school systems that claimed their cap exempt filing status under “a nonprofit entity that is attached to an IHE” to provide documentation evidencing the "shared ownership" or "control by the same board or federation" to establish the relationship or attachment to an IHE. This new adjudication requirement has proven to be a challenge to many school districts and therefore caused some delays in the processing of the cases filed.
Because of this new trend, school districts should be prepared to file their new H-1B petitions for the School Year 2011~12 as “cap subject” cases, UNLESS the school system is confident in establishing the prerequisite “affiliation” with an IHE under the new stricter interpretation through “shared ownership” or “controlled by the same board or federation.”
If you have any further questions or wish to know more about your district’s eligibility, please contact our office directly so that we can start a free evaluation process to help you identify if your District should file the future H-1B petitions under the less favorable cap subject category or if your District may still be eligible to continue file under the more favorable cap exempt category.
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