By: Michael Phulwani, David Nachman, and Rabindra K. Singh, Esq.

On April 7, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. Because of the surge of petitions that were filed, USCIS conducted a lottery to determine which petitions received during the five-day submission period will actually be considered. USCIS has already started sending receipt notices for the petitions selected in the random selection process.

As expected, it is a very stressful time for thousands of potential H-1B workers. Until the prospective H-1B employers or their legal representatives start receiving receipt notices, and the dark clouds of uncertainty over prospective H-1B visa holders move past, the question worth asking and exploring is: “Do I still have a chance of getting an H-1B visa even if my H-1B petition does not make it to the H-1B cap?”

Unfortunately, the regular (bachelor’s) H-1B cap remains at 58,200 and the master’s cap cannot accommodate more than 20,000 specialty occupation workers. However, there are certain categories of cap-exempt H-1B visas. One such category is for beneficiaries of employment offers at: (1) institutions of higher education or related or affiliated nonprofit entities; or (2) nonprofit research organizations or governmental research organizations. Thus, to get a cap-exempt H-1B visa using this category the fundamental question to ask is: whether the offer of employment is from an institution of higher education, or related or affiliated nonprofit entities, or from nonprofit research organization or governmental research organization.

For the purposes of H-1B cap exemption, the H-1B regulations have adopted the definition of institution of higher education set forth in section 101(a) of the Higher Education Act of 1965. To be classified as an institution of higher education, the educational institution must satisfy five (5) requirements. First, the educational institute must be a public or other nonprofit institution. Second, the master’s degree issuing institution must be accredited by a nationally recognized accrediting agency or association.

Moreover, the educational institution must satisfy all of the following three requirements: (1) admits as regular student only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (2) is legally authorized within such state to provide a program of education beyond secondary education; and (3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree. The previous article in this series discussed in detail which educational institutions may or may not qualify as an institution of higher education.

Assuming that the academic institution will qualify as an institution of higher education, the next two questions that have perplexed immigration practitioners and potential H-1B employers are: (1) what is the difference between employed “by” and employed “at”; and (2) how does one determine if the nonprofit institution is “related to or affiliated with” an institution of higher education.

The 2006 Aytes memo clarified the difference between employed “at” and employed “by’, and the purpose behind it. This memo explained that commonly, qualifying institutions petition on behalf of current or prospective H-1B employees and claim this exemption. In certain instances, petitioners that are not themselves a qualifying institution also claim this exemption because the prospective H-1B beneficiary will perform all or a portion of the job duties “at” a qualifying institution. Su