Immigration Blogs

Prior to the issuance of the regulation USCIS through a policy memo issued on June 6, 2006 instructed USCIS adjudicators to apply the definition of affiliated non-profit related to the ACWIA Fee exemption found at 8 CFR 214.2 (h)(19)(iii)(B) which stated:

Following issuance of the memo it was common for adjudicators in RFEs to require:

• Documentation showing that the organization is connected or associated with the university through shared ownership or control by the same board or federation; or
• Documentation showing that the organization is operated by the university; or
• Documentation showing that the organization is attached to the university as a member, branch, cooperative, or subsidiary.

8 CFR 214.2 (h)(8)(ii)(F)(2) (iv) adds a fourth way of qualifying, if:

• The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education; and
• A fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

The DHS responses to comments published with the final rule clarify that a nonprofit may qualify for the CAP and fee exceptions even if they are engaged in more than one fundamental activity, as long as one of the fundamental activities directly contributes to the research or education goals of the institute of higher education.

The regulations and responses to comments published with the final rule do not provide a definition of an “affiliation agreement”. This is unfortunate as the purpose of the regulation was to define the term ‘affiliated’ but the term “affiliation agreement is contained within the definition of ‘affiliated’. Unless adjudicators consistently determine that any agreement with an institute of higher education, that establishes an active working relationship for the purpose of research or education, qualifies as an ‘affiliation agreement’, we may see inconsistencies in adjudication based on what particular officers consider to be a qualifying “affiliation agreement’.

USCIS has been issuing RFEs:

• Requesting evidence of working relationships that state “The agreement alone is not sufficient to establish that you have an active working relationship between your organization and the institutions of higher education for the purposes of research or education…”
• That state “agreements executed between an institution of higher education and your parents, affiliates, or subsidiaries would not qualify for [the cap] exemption because the regulations require that your organization-not your parent, affiliates or subsidiaries-has entered into a written affiliation agreement with an institution of higher education.“;

USCIS has been issuing these RFEs despite the fact that the regulation can be read to indicate that the formal written affiliation agreement itself is the evidence that is required to establishes an active working relationship exists for the purposes of research or education. It may be appropriate to issue RFEs requesting evidence pertaining to the active working relationship if the terms of the agreement do not explicitly indicate the active nature of the working relationship and its purpose, but where the agreement includes terms that explicitly indicate there is an active working relationship for the purpose of education or research, such RFEs appear to be a demand that goes beyond the regulations. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) states the standard of proof in administrative immigration proceedings is “Preponderance of the evidence” meaning the petitioner must provide evidence that demonstrates his claim is “probably true.” The Supreme Court has stated that if the Petitioner submits relevant, probative, and credible evidence that shows the claim is “more likely than not,” true the Applicant or Petitioner has satisfied the standard of proof. See U.S. v. Cardozo- Fonseca, 480 U.S. 421 (1987). In the absence of contradictory evidence, a petitioner should be able to satisfy their burden of proof with an explicitly worded agreement, as long as it indicates that there more likely than not exists an active working relationship for the purpose of education or research.  Filings are not required to demonstrate eligibility beyond a reasonable doubt but the RFEs appear to treat all Petitioners as bad faith actors by requiring evidence beyond what is required to satisfy the standard of preponderance of the evidence. While the RFEs appear to be inappropriate as a practical matter it is best to provide as much additional evidence as possible of the active nature of the working relationship and its purpose because of extensive deference courts grant to an agency’s interpretation of its own regulations. See Auer v. Robbins, 519 U.S. 452 (1997)

Cancellation of the interim policy of deference to prior determinations that a non-profit entity  is exempt based on affiliation

 

On April 28, 2011 USCIS issued the policy memorandum, “Additional Guidance to the Field on Giving Deference to Prior Determinations of H-1B Cap Exemption Based on Affiliation, PM-602-0037” instructing officers to 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.  Petitioners were required to provide USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. The responses to comments published with the final regulation declare that such deference to prior determinations of affiliation will no longer be provided because the regulation supersedes the memo and that all petitioners have to provide evidence of affiliation as stated in the regulations.

Codification of the policy exempting beneficiaries placed at qualifying institutions by a non-qualifying employer. 

 

Per 8 CFR 214.2 (h)(8)(ii)(F)(4) an H-1B beneficiary who is not directly employed by a qualifying institution shall qualify for an exemption under such section if:

• The H-1B beneficiary will spend the majority of his or her work time performing job duties at a qualifying entity; and

• The job duties directly and predominately further the goals of the qualifying entity related to higher education, nonprofit research or government research.

Importantly the H-1B Petitioner is required to provide documentary evidence that confirms the duties to be performed by the H-1B beneficiary primarily further the functions of the qualifying institution related to higher education, nonprofit research or government research.

Expansion of the definition of  “government research organization”

 

The new regulations have amended the definition of government research organization  contained in 8 CFR 214.2 (h)(19)(iii)(C) from “A governmental research organization is a United States Government entity…” to  “A governmental research organization is a federal, state, or local entity…“

The Regulations at 8 CFR 214.2 (h)(8)(ii)(F) state: