shutterstock_423046402Ralph Waldo Emerson famously opined that “a foolish consistency is the hobgoblin of little minds…” I have often opined (less famously) that, if Emerson is correct, there must be very few small-minded adjudicators at U.S. Citizenship and Immigration Services (USCIS).

Even in areas where USCIS has made an open effort to establish uniformity, it often seems that the only thing one can count on consistently is, well, inconsistency. For example, in 2010, USCIS began denying H-1B cap exempt petitions filed by nonprofits affiliated with institutions of higher education even though those same petitioners had repeatedly been approved as cap exempt for years. Particularly hard hit were nonprofit hospitals affiliated with medical schools that rely on cap exempt H-1B filings to sponsor international medical graduates who are completing their U.S. residency and fellowship training in accredited graduate medical education programs. These programs operate on an academic calendar that runs from July 1 – June 30, a time of year when there are no new H-1Bs available. Understandably, the hospitals and medical schools raised a stink with their Congressional representatives who in turn, and along with AILA, took the issue to USCIS.

In response, USCIS announced that it would reconsider its policy on affiliation-based cap exemption. Brilliant! In the meantime, USCIS published interim guidance in April 2011 “to promote consistency in adjudications until new guidance is issued.” According to the guidance, USCIS would defer to a prior determination on cap exemption until it decided what its new and improved policy would be. To its credit, USCIS does follow this policy most of the time. But, for reasons I have never understood, USCIS does not apply deference in situations where the beneficiary will be employed at a facility that has previously been determined to be cap exempt but will not be employed by that entity. Thus, if a doctor is employed by a nonprofit academic medical center that has been previously counted as cap exempt, his H-1B petition is more or less automatically cap exempt. But, if he is working at that exact same site, doing the exact same job, and is employed by a private physician practice group, USCIS may very well deny the petition on grounds that it is not sufficiently affiliated with an institution of higher education. For petitioners who have never sought affiliation-based cap exemption previously, the situation is very much akin to the H-1B lottery – completely random.

Case in point:  I represent a nonprofit health system in a rural area that has difficulty attracting U.S. physicians. They frequently recruit international medical graduates who have completed U.S. residency training in H-1B status and are looking to retain their cap exempt H-1B status when they move to post-residency employment. The ability of these rural hospitals to assure such physicians that they have a reliable means of obtaining a cap exempt H-1B approval is an invaluable recruiting tool. With knowledge that it is entitled to deference, my client could offer relative certainty to its H-1B candidates; without it, candidates would often look elsewhere. We prepared a detailed brief to USCIS which included copies of all affiliation agreements, evidence of shared board members, and documentation showing that the client’s employees were also appointed faculty at the universities. Despite this, we received the predicted RFE. Notwithstanding a response that included even more evidence of the robust affiliation between the petitioner and the various universities, USCIS issued a boilerplate denial that summarily rejected the evidence without any real explanation. A short time later, we filed a second petition for the same employer on behalf of another beneficiary using the identical brief and supporting evidence. That case was approved without an RFE. Poof! Now we have deference. We quickly re-filed case #1, this time attaching the recent approval and explaining that we were now entitled to deference. USCIS approved the case. One truly cannot make this up.

The tragedy is that it is all so unnecessary. INA §214(g)(5) clearly exempts from the H-1B cap any nonimmigrant who will be employed by or at an institution of higher education “or a related or affiliated nonprofit entity.” One need only consult the dictionary to define the terms “related” and “affiliated.” They are not complicated.

After 4+ years of waiting and some persuasive advocacy for a common sense approach to defining these common sense terms, USCIS finally published proposed rules on the affiliation-based cap exemption standard as part of the proposed High Skilled Worker regulation on December 31, 2015. While the proposed rule leaves in place the current standard that is so inapposite and arbitrarily applied, it also adds new language that would enable nonprofit entities with written affiliation agreements with institutions of higher education to qualify for cap exemption if “a primary purpose of the nonprofit entity is to directly contribution to the research or education mission of the institution of higher education.” There is much room for continuing ultra vires mischief in this language. I fervently hope that USCIS reads and adopts AILA’s comments on this section of the rule which suggest a wholesale replacement of the proposed language or, at least, the elimination of the “primary purpose” test that, if left in place, will render many petitioners who are now routinely approved for cap exemption ineligible.

Bring on the hobgoblins! It’s time for a little foolish consistency.

Written by Jennifer Minear, AILA Secretary