H1B News : Possible Memo; Cap-Gap Relief is Not Likely
Posted May 05, 2006
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Various attorneys from the Murthy Law Firm were involved with the planning and participated in a recent AILA Washington D.C. Chapter Conference. We now are able to share important insights and revelations from senior government officials at the conference relevant to H1Bs. The USCIS anticipates issuing guidance on some key H1B matters shortly, as well as a memo later this summer. Additionally, they advised that they do not foresee any "cap-gap" relief to assist students in changing to H1B status from within the U.S. While the lack of cap-gap relief is not positive, there were other items that may prove beneficial when the USCIS issues guidance on these matters.
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The topics addressed in a possible future memo appear to be positive, favorable interpretations of the laws and procedures relating to H1Bs. We want to make it clear that what is being discussed is a possible memo, based on discussions during the conference. This is not, as yet, an existing memo. In addition, the USCIS indicated that they expect further H1B guidance, regarding the H1B Master's Cap and the cap exemption, on what constitutes "affiliation" with an institution of higher learning. This guidance is likely to clarify some areas, while adding restrictions to others.
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H1B Cap-Gap Relief Not Likely
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The USCIS indicated that it is not likely they will issue what is commonly referred to as "cap gap" relief for Fiscal Year (FY) 2007. This relief, if it were made available, would address the gap in status experienced by some students between the expiration of their F-1 or J-1 statuses and the start of the availability of H1B cap numbers on October 1, 2006. This relief has been granted in previous years to assist F-1 and J-1 students in transitioning from student to H1B status without the need to depart the country. In short, the problem is that, in order to change status, a person must have a nonimmigrant status until the date of the effective change. Thus, cap-gap relief provided a bridge between the end of the student status and the start of the H1B status.
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The cap-gap relief was not granted for FY2006. It was last granted, in a rather last-minute action, for FY2005. As indicated, it is unlikely that it will be issued for FY2007. Thus, many students will not be able to remain in status until October 1, 2006. They will have to leave the country and apply for H1B visas at the consulates abroad in order to return and begin work on October 1, 2006.
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Allow Balance from Six Years on H1B after One Year Abroad
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The potential memo is expected to address what is being referred to as a remainder rule. This would apply to H1Bs who travel abroad before the expiration of their initial H1B six-year periods. It essentially would allow them to regain any unused H1B time from the initial six years without being counted against the cap, even if they spent a full year of that time abroad. The anticipated memo would clarify what may already be allowed under the wording of the existing regulations. A clarification would be helpful, nonetheless, as there are instances of individuals going abroad prior to exhausting the full six years they are allowed in H1B status.
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Decoupling H1B and H-4 Time
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As regular MurthyDotCom and MurthyBulletin readers know, the time spent in H-4 status is counted against the permitted time in H1B status, and visa versa. This interpretation arises from a more restrictive terminology in the immigration regulations, when compared to the statute itself called the Immigration and Nationality Act. This has long created problems in many situations, particularly those involving minor children or spouses. The USCIS indicated that, if released, this memo would "decouple" the counting of time for H1Bs and H-4s, and permit each status for the maximum six year period. It was not clear if this would address L-1 and L-2 time as well.
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Definition of "U.S. Advanced Degree"
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The USCIS stated that guidance is coming very shortly regarding the advanced degree exemptions for H1Bs, particularly regarding what is meant by the term "master's degree." There are some degrees that are ambiguous, as they are not specifically called masters' degrees, but are at or above the master's level in terms of years of education. Additionally, there are some degrees that are referred to as masters' degrees that may not meet the standards. It is necessary to look beyond the name of a degree to where it stands in the degree hierarchy. By way of example, it was indicated that the Juris Doctor (JD) degree held by most U.S.-educated attorneys would be sufficient, even though it is not a Master's in Law (LLM) degree. On the other hand, it was indicated that the Master's of Chiropractic may not meet the standards to qualify under the H1B advanced degree exemption quota.
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Definition of "Exempt Institution"
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H1B cases filed for individuals employed at institutions of higher education, or related or affiliated non-profit entities, are cap exempt. Since cap exemption can be incredibly valuable, many creative attorneys have sought to use this exemption to its fullest extent. As a starting point, the exception says employed "at," rather than "by," an institution of higher education. Thus, there are various situations in which a person is employed by a private entity, but placed at a university or affiliated institution. Moreover, there is no definition of "affiliate," so the boundaries of the required connection between the work location and the university are being tested by creative and aggressive advocates. In order to address this, the USCIS plans to issue guidance on how much of a connection to the university is required to enjoy the H1B cap exemption.
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Conclusion
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The possibility of a USCIS memo, while good news, changes nothing at this time. We must wait for the actual memo, which could be released some time this summer. If such a memo does become a reality, it will be necessary to review its exact wording to determine the extent of any of its provisions. We at the Murthy Law Firm appreciate this information about what may be in the near future for the H1B area of U.S. immigration law. While the lack of cap-gap relief creates difficulties for many students, if the H1B and H-4 time were to be decoupled it would be highly beneficial and address some serious problems that arise for H-4s, in particular. We often see H-4 children who use all their H time as minors, and then are ineligible for H1B status after completing college.
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We hope that the USCIS is able to issue this memo in the near future to provide much-needed relief to H1Bs and their families.
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