Designating a previously issued decision¹ Matter of A-T- Inc², by the Administrative Appeals Office (AAO) as an Adopted Decision, United States Citizenship and Immigration Services (USCIS), through a policy memorandum, clarified that in order to qualify for an H-1B numerical Cap exemption based upon a Master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the Beneficiary’s degree was earned.

So, how this policy memorandum will impact practitioners, employers intending to hire foreign nationals who hold U.S. Master’s or higher degree using the H-1B visa program, and F-1 visa holders, particularly those who are engaged in Optional Practical Training.

Up until now, before determining the H-1B petition getting considered, accepted, and approved under the Master’s Cap, practitioners and prospective H-1B employers used to closely focus their analysis only on whether or not the Master’s degree conferring U.S. institution qualifies as a United States institution of higher education.

Going forward, they would have to engage in additional fact finding of whether or not the United States institution which conferred Master’s degree to the Beneficiary actually qualified as a United States institution of higher education at the time it awarded the degree.

To refresh memory, the H-1B Visa Reform Act of 2004 amended section 214(g)(5) of the Immigration and Nationality Act (INA) by adding an additional exemption to the H-1B Cap. The new section 214(g)(5)(C) provided that foreign nationals who earned a Master’s or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) are exempt from the H-1B visa Cap (up to a maximum of 20,000 per year). Once the 20,000 Cap is reached, any employer seeking to employ a foreign national who possesses a Master’s or higher degree gets subjected to the regular annual H-1B Bachelor’s degree Cap of 65,000 unless the foreign national is eligible for another statutory or regulatory exemption.

It is pertinent to note and highlight that  H-1B petitions indicating that they are exempt from the annual numerical limitation of 65,000 (because the Beneficiary holds a Master’s or a higher degree from a United States institution of higher) but are later determined by USCIS, after the final receipt date, to be subject to the numerical limit gets denied. Such unqualified Master’s Cap petitions do not get considered under the regular H-1B Bachelor’s Cap. See 8 C.F.R. § 214.2(h)(8)(ii)(B)

In the Matter of A-T, determining that the degree-conferring institution, International Technological University³ was not accredited or pre-accredited at the time it awarded the Beneficiary Master’s degree; USCIS’ California Service Center denied the H-1B petition seeking Master’s Cap exemption.

On appeal, the Petitioner contended that the INA does not require that the degree be from a United States institution of higher education at the time the degree is awarded. Rather, the Petitioner asserted that a Beneficiary may qualify for the Master’s Cap if the Beneficiary earned a degree from an institution that qualified as an institution of higher education at the time of adjudication.

Further, the Petitioner argued that even if the Beneficiary would not have qualified for Master’s Cap, in the alternative, USCIS should have adjudicated the petition under the general H-1B Bachelor’s degree Cap.

Disagreeing with Petitioner’s arguments and stating that the Petitioner’s proffered interpretation will introduce uncertainty for graduates seeking immigration benefits over time, the AAO dismissed the appeal.

As stated above, to qualify for the H-1B Master’s Cap exemption, prospective H-1B Beneficiary must have earned a Master’s or higher degree from a “U.S. institution of higher education” as defined by Section 101(a) of the Higher Education Act of 1965. See INA Section 214(g)(5)(C).

Among other requirements, as laid down by the Section 101(a) of the Higher Education Act of 1965,  an “institution of higher education” is defined, as a public or nonprofit educational institution that: is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the [U.S. Secretary of Education] for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.⁴

The statute, thus, only requires that the graduate must have “earned” a degree “from a United States institution of higher education”; and, that the conferring institution (public or nonprofit educational institution) should be either “accredited” or “granted a pre-accreditation status.” As noted by the AAO, the statute, however, does not expressly state whether the institution must have been accredited or pre-accredited at the time the degree was earned or at the time when a relevant immigration benefit gets adjudicated.

Settling this issue, the AAO in Matter of A-T held that the educational institution’s qualifications must be established at the time the degree is earned by the Beneficiary.

Supporting its interpretation of the statute, the AAO stated that requiring beneficiaries to earn their degrees from institutions that, at a minimum, are pre-accredited at the time the degree is earned helps ensure the quality of education necessary to merit a Master’s Cap exemption.⁵ Assessing the institution’s qualifications at some later time – such as when an immigration benefit is requested for one of the institution’s graduates – does not advance those quality considerations.

Disagreeing with Petitioner’s proffered interpretation – requiring pre-accreditation or accreditation status at the time of immigration benefit adjudication –, the AAO stated that it could lead to imprudent and unintended results. Specifically, the AAO noted that:

“If, as the Petitioner asserts, the determination is based on whether the institution qualified as an institution of higher education at the time of the immigration benefit adjudication, then a Beneficiary could qualify for the Master’s Cap exemption based on (pre-)accreditation that happens long after the degree was earned which would not necessarily reflect the quality of the beneficiary’s education. Conversely, a beneficiary who earned a qualifying degree from an institution of higher education, and who would have qualified for the Master’s Cap exemption, could subsequently become ineligible for the exemption if the institution lost its accreditation, in some cases long after the beneficiary earned a qualifying degree. [emphasis supplied]

Further, addressing Petitioner’s second contention – even if the Beneficiary cannot qualify for a Master’s Cap exemption, USCIS should also examine his eligibility under the general H-1B Cap – the AAO stated that the relevant regulation generally does not permit H-1B Petitioners to claim eligibility under alternative grounds.

In particular, once again disagreeing with the Petitioner’s argument, and quoting the pertinent language of the regulation contained at 8 C.F.R. § 214.2(h)(8)(ii)(B), the AAO, in essence  stated that unqualified Master’s Cap petitions do not get considered under regular H-1B Cap provided that USCIS “determines” that the petition is not qualified for the Master’s Cap after “final receipt date.”

The “final receipt date” is the date when USCIS notifies the public that it has received sufficient numbers of petitions to reach the H-1B Cap. The date a Beneficiary’s Cap exemption is “determined” is the date on which USCIS articulates its adjudication in a decision.⁶

Interestingly enough, 8 C.F.R. § 214.2(h)(8)(ii)(B) states that USCIS will not only reject the unqualified Master’s Cap petition but it will also not return or refund the filing fee, which in some cases could exceed $5,000.00

Based on the foregoing, because the AAO has interpreted the statute to require that the institution’s qualifications must be established at the time the degree is earned, the date the Beneficiary earned his/her Master’s or higher degree is critical. If the educational institution conferring Master’s or higher degree was not accredited or pre-accredited when the Beneficiary earned his/her Master’s degree, the Beneficiary will not qualify for H-1B Master’s Cap. Petitioner’s argument that even if the Beneficiary did not qualify for the Master’s Cap, USCIS should examine eligibility under the general H-1B Cap, would very likely fail. Thus, moving forward, it should be imperative for the practitioners and prospective H-1B employers to double check not only on the fact the Beneficiary’s Master’s degree conferring U.S. institution qualifies as a United States institution of higher education but also that the educational institution qualified as a United States institution of higher education at the time it awarded degree to the Beneficiary. Failure to take such precautionary steps may result in Master’s Cap H-1B petition getting denied and not being considered under the regular H-1B Cap. Additionally, the prospective H-1B employer risks losing filing fee for the alleged Master’s Cap petition.

• 1 Originally issued on December 31, 2013, as a non-precedent decision.
• 2 Matter of A-T- Inc, Adopted Decision 2017-04 (AAO May 23, 2017).
• 3 based in California.
• 4 See 20 U.S.C. § 1001(a) (2012) (originally enacted as the Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219) (“Higher Education Act”) (emphasis added).
• 5 See U.S. Dep’t of Education, FAQS About Accreditation, https://ope.ed.gov/accreditation/FAQAccr.aspx (last visited May 24, 2017) (stating that the “goal of accreditation is to ensure that education provided by institutions of higher education meets acceptable levels of quality”).
• 6 See 8 C.F.R. §§ 103.2(b)(19), 103.3(a)(1)(i), and