In order to determine a beneficiary’s eligibility for exemption from the H-1B cap based on a master’s (or higher) degree, U.S. Citizenship and Immigration Services (USCIS) has clarified that the conferring university must have been a “United States institution of higher education” at the time a degree was earned—not merely at the time a petition is adjudicated. The policy guidance is the result of a recent decision by the Administrative Appeals Office (AAO) of USCIS: Matter of A-T-, Inc.
                                                                                                           
Background

Among the most popular of employment-based, nonimmigrant visas available, the H-1B category facilitates U.S. companies seeking to recruit and employ alien professionals in “specialty” occupations for a finite duration of time, typically up to six consecutive years. U.S. employers serve as the petitioners of H-1B applications, with their intended alien workers as the beneficiaries. At present, Congress has authorized a maximum of 65,000 H-1B visas available to foreign nationals per year, a limitation referred to as the H-1B cap or quota. Beneficiaries with at least a master’s degree from a U.S. institution of higher education are exempted from this cap, however, and this so-called master’s-cap exemption is statutorily limited to an additional 20,000 H-1B visas per year.

As prescribed by Section 214(g)(5)(C) of the Immigration and Nationality Act (INA), the principal requirement a beneficiary must meet for the master’s-cap exemption is obtainment of a qualifying graduate degree. The parameters of what counts as a degree are stipulated in higher education legislation, which defines a qualifying U.S. institution of higher education as a public or otherwise nonprofit educational institution that is accredited or otherwise in pre-accreditation status. Eligible master’s-cap H-1B beneficiaries, therefore, must have earned their graduate degrees from American colleges or universities conforming to this definition.

In Matter of A-T-, Inc., a petitioning employer appealed the denial of its master’s-cap H-1B application. The petition’s denial, according to the Director of the California Service Center, stemmed from the degree requirement: While the prospective beneficiary had earned a master’s degree, the conferring institution was neither accredited nor in pre-accreditation status at the time the alien received his degree. The petitioner countered that this should not be grounds for a denial. Instead, the petitioner argued, the conferring institution need only adhere to the definition of a qualifying U.S. institution at the time of an application’s adjudication, not at the time a degree was awarded.

Findings

The AAO denied the appeal. While statute fails to address the issue of when a college or university must be a qualifying U.S. institution of higher education, the appellate body ultimately ruled that, for purposes of master’s-cap eligibility, this qualification must be established at the time a degree is earned. Two reasons explain why. For one, ensuring that a conferring institution is, at a minimum, in pre-accreditation status at the time a beneficiary earned his or her degree serves to ensure the quality of education sought in beneficiaries of the master’s cap. And then there’s the problematic issue with the flipside of establishing an educational institution’s qualifications at the time of adjudication. What would happen, for instance, to a hypothetical beneficiary who had earned a master’s degree from a U.S. university that was accredited but that later, at the time of adjudication, had lost its accreditation? According to the AAO, the result would be unacceptable uncertainty for beneficiaries who are eligible under the master’s-cap exemption one day, but ineligible the next as a function of any reason their institutions of higher education lose accreditation. 

Our Thoughts

This latest policy decision occurs in a series of changes, both proposed and enacted, targeting the H-1B program. (Indeed, the controversy surrounding the visa shows few signs of abating.) But on its own terms, this adopted policy is welcome clarification for both petitioning employers and their prospective foreign workers. It ensures the former group that there is an objective metric governing the quality of their alien employees’ education. And the decision simultaneously assists the latter group in clarifying their eligibility for a visa before finding and applying for a job position—a rigorous process in most cases—that suits them. 

For the past two decades, our experienced attorneys have successfully represented both employers and foreign nationals in petitioning for immigrant and nonimmigrant visas, including the H-1B. Our years-long success hinges on keeping track of all policy developments, analyzing their implications, and immediately thereafter instituting changes at our practice to conform to new guidelines.

We understand how important the H-1B visa is to a diverse array of companies and foreign nationals. If you are interested in a case evaluation at no charge, jump start your immigration plans by clicking here.

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Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017

At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.

Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).

He will use his experience and expertise to deliver the highest quality of service to our clients.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twenty years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(05/31/2017)