AAO Addresses H-1B Cap Exemption for Public School

On September 8, 2006, the AAO issued a decision regarding exemption from the H-1B cap for a Texas public school, as well as whether the position is a specialty occupation and whether the teacher holds the requisite degree. Deferring to USCIS’ interpretation of the AC21 exemption to the H-1B cap, the Office found that the District Director’s decision to apply the definition of a related or affiliated nonprofit entity found in 8 C.F.R section 214.2(h)(19)(iii)(B), which defines the term for purposes of the H-1B fee exemption as a nonprofit entity that is “connected or associated with an institution of higher education, through shared ownership or control by the same board or federation . . . or attached as a member, branch, cooperative or subsidiary”, was reasonable.

American Immigration Lawyers Association filed an amicus brief with the AAO in this case on this issue in which it argued that the regulatory provision relating to the fee exemption does not apply to the exemption from the H-1B numerical limitations (for which no regulation exists). Rather, the AAO should look to the totality of the relationship between the petitioner and certain institutions of higher education and analyze “affiliated or related” in a manner consistent with the definitions of those terms throughout immigration law and with the ameliorative intent behind the relevant statute.

Source: AILA Newsletter September 06

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