USCIS Memorandum Provides Guidance on Eligibility for Exemption from the H-1B Cap Under AC21 Section 103

August 16, 2006

Section 103 of the American Competitiveness in the Twenty First Century Act (AC21) makes exempt from the H-1B cap aliens who are offered employment at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

In an internal memorandum published by USCIS on June 6, 2006, USCIS clarifies that in order to be considered exempt from the cap under section 103, the alien need only be employed at a qualifying institution, and need not necessarily be employed by such an institution, so long as the alien's employment "directly and predominately furthers the essential purposes of the qualifying institution." In other words, the memo states, there must be a "logical nexus between the work performed predominately by the beneficiary and the normal, primary or essential worked performed by the qualifying institution."