No H-1B Visa Lottery Necessary for Institutes of Higher Education, Affiliated Non-Profits, and Government Agencies for Research

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By Jessabelle M. Koppelman, Esq. and Julie Oliver-Zhang, Esq.

If you have the right employer sponsor, you can apply for an H1b visa anytime of the year and have no need to win a spot in the H-1B lottery. Every year, USCIS sets aside 85,000 H-1B visas that are subject to the lottery process. But did you know that some organizations are exempt from the cap? Qualifying organizations do not need to undergo random selection to compete for limited H1b visas. Indeed, federal law allows certain organizations to forego the lottery process, specifically:

  1. Institutions of higher education;
  2. Non-profit organizations related to or affiliated with an institution of higher education;
  3. Non-profit research organizations; and
  4. Government research organizations.

See INA § 214(g)(5)(A)-(B).

Determining if your organization is exempt from the H-1B visa cap can be tricky. Let’s take a look at some of the fundamental characteristics of institutions of higher education and related or affiliated non-profits.

Institution of Higher Education

USCIS relies on the Higher Education Act of 1965’s definition of “institution of higher education.” Under the Act, key characteristics of a college university are:

  • Admits students with a certificate of graduation from a school that provides secondary education, or the equivalent;
  • Authorized in the State to provide an educational program beyond secondary education;
  • Provides an educational program that awards a bachelor’s degree or provides at least a two (2) year program that is acceptable towards a bachelor’s degree;
  • Is a public or other non-profit institution; and
  • Is accredited or pre-accredited.

Related to or Affiliated

The definition of an institute of higher education is clearly outlined, but how USCIS determines that a non-profit is “related to or affiliated” with such institutes is not as clear. To qualify for an H1b visa cap exemption, a non-profit petitioner can demonstrate that they are affiliated or related to an institution of higher education if they can prove at least one of the below prerequisites. Generally, that the non-profit is:

  • Associated through mutual ownership or control by the same board or federation;
  • Is operated by an institution of higher education; or
  • Is attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

Non-profits need to provide proof that they qualify for this exemption. Some evidence that USCIS may consider includes but is not limited to, By-Laws and Articles of Incorporation, IRS 501(c)(3) Designation Letter, documentation listing the mutual Board of Directors members, and agreements between the non-profit and institute.

Oliver-Zhang Law’s immigration attorneys recognize that the H-1B visa process can be confusing. That’s why our professionals are committed to guiding you every step of the way. We even provide free immigration consultations for individuals and companies that want to learn more about H-1B visas.

Contact us today to inquire about our immigration services. Call our experienced H1B attorneys ready to provide you with the best services at (202) 643-1110 or email us at [email protected]. We look forward to working with you.

Meiwah Reopening- Coronavirus and the Immigrant Population

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Dear Friends,
Great news, Meiwah is reopening today!  Like so many local businesses that have been impacted by Covid-19, particularly Asian restaurants, Meiwah Restaurant in Chevy Chase had stopped operating in April.  Larry La, the owner of the restaurant, is a Vietnamese-Chinese refugee who arrived in the US decades ago.  For nearly 20 years, the restaurant has stood as a symbol of hard-won American dream in our community.  For us immigration lawyers, it is a source of pride, inspiration, and affirmation that those whom we help can go on to make such important and wonderful contributions to America.  Here are two articles about Meiwah and the devastating domino effect coronavirus has had on a chain of businesses:   
https://www.bloomberg.com/news/features/2020-04-18/one-restaurant-s-story-shows-how-recession-spreads?utm_source=url_link
https://www.washingtonpost.com/news/food/wp/2019/05/23/larry-la-fled-vietnam-and-thrived-in-restaurants-but-he-could-not-save-his-flagship-meiwah/

Meiwah is reopening today for pick-up orders at 301-652-9882, and delivering via Doordash.com and Ubereats.com.  

Asian restaurants are commonly employers for a struggling immigrant population. They have also been the undeserved targets for discrimination during this crisis.  I hope that everyone will help spread the word and try to order food and support these local businesses in our communities as much as we can.  They truly need our help!  

Thank you all!  And please stay well. 

~ Julie Oliver-Zhang, Managing Partner of Oliver-Zhang Law

Zantac Recall Cancer Lawsuit Update

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Zantac Recall Cancer Lawsuit Update, April 3, 2020:

By Julie Oliver-Zhang, Esq. and Rachel Wei, Esq.

The U.S. Food and Drug Administration (FDA) announced on April 1, 2020 that it is requesting manufacturers to immediately withdraw all prescription and over-the-counter (OTC) ranitidine drugs, commonly known as Zantac, from the market. A contaminant known as N-Nitrosodimethylamine (NDMA) in ranitidine medications is a probable human carcinogen. The FDA found that NDMA in some ranitidine products increases over time and when stored at higher than room temperatures. This results in consumer exposure to unacceptable levels of this carcinogenic impurity. Disturbingly, new FDA testing confirmed that the carcinogenic NDMA levels increase in ranitidine even under normal storage conditions

On February 10, 2020, 15 Zantac lawsuit plaintiffs have been transferred to South District of Florida court, where a multidistrict litigation (MDL) has been filed on behalf of individuals who have been diagnosed with cancer subsequent to taking Zantac and similar ranitidine products. According to the transfer order, which was approved by federal judges, there are currently 126 cases pending in 21 districts nationwide. The Zantac lawsuit MDL currently consists both of individual plaintiffs alleging personal injury and punitive damage class action lawsuits.

Oliver-Zhang Law is representing clients nationwide who were diagnosed with cancer after exposure to Zantac. Please contact our Zantac attorneys at [email protected], or 202-643-1110 to see if you are eligible to claim compensation for your cancer injuries in the ongoing Zantac cancer litigation.

Knocking Down the Barricades of Discrimination: Same-Sex Marriage Equality Upheld in Oklahoma

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Visa

June 15, 3014

By Julie Oliver-Zhang, Esq.

Victory was celebrated this Tuesday by gay rights supporters as Oklahoma joined one of two other federal courts, Utah and California, which have struck down a ban against same-sex marriage as unconstitutional.  In the decision, Judge Terence C. Kern of United States District Court for the Northern District of Oklahoma, using a rational basis review, held that:

“Part A intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification. First, Part A’s disparate impact upon same-sex couples desiring to marry is stark.  Its effect is to prevent every same-sex couple in Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law has a small or incidental effect on the defined class; it is a total exclusion of only one group . . . .  moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.”

One of the two plaintiff lesbian couples, Susan Barton and Gay Phillips, own a company that provides vocational training to homeless teens.  Barton is an adjunct professor at Tulsa Community College and Phillips has a doctorate in sociology.  They have been in a committed, loving same-sex relationship for thirty years.  In order to legitimize their relationship, they had joined hands in matrimony three times.  The first was in a civil union in Vermont in 2001, then in Canada in 2005.  They again received a marriage license in California in 2008.  Like the Barton couple, many other same-sex couples have to marry outside of the state where they reside in order to qualify for federal benefits, such as the right to immigrate and receive green cards that was made available by Windsor in 2013.

On the heels of the Utah same-sex marriage freeze, Judge Kern had stayed his decision also pending appeal, although Attorney General Holder has affirmed in his recent video statement that all those LGBT couples who did manage to get married in Utah before the freeze are absolutely eligible for federal benefits.  This means that until the appeal is resolved, same-sex couples cannot legally get married and receive marriage licenses in Oklahoma.

Thus, the practical implication of the decision for gay, lesbian, bisexual and transgender couples who are in need of immediate immigration benefits is that they still must get married in another state or country that had legalized same-sex marriage.  USCIS has announced that it is the law of where the marriage was conducted, and not where the gay couple resides, that matters when it comes to the issuance of immigration benefits.  With foreign fiancée or spouses who have lived together and perhaps unlawfully present in the United States for decades because they are unable to receive legal status prior to Windsor, they can now contact an experienced LGBT immigration attorney to discuss their green card and inadmissibility waiver options.  Often, cases involving illegal aliens in same-sex marriages require professional assistance because the penalty can be deportation and permanent bar from re-entering the United States.

Yet, the tidal wave of equality for same-sex marriage is undeniable.  As Judge Kern eloquently concluded in his order:

“Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. . . .  Equal protection is at the very heart of our legal system and central to our consent to be governed.”