Requirements for U.S. Masters’ Graduates to Enjoy Benefit of H1B “Master’s Cap”

The U.S. Citizenship and Immigration Services (USCIS) has recently started denying some H1B petitions filed under the advanced degree exemption, or "master's cap," due to the nature of the U.S. school from which the individual graduated. This is not a change in the law; rather, it is part of the continuing USCIS trend toward strict adherence to statutory and regulatory requirements. Following is an explanation of the requirements that must be met by the U.S. degree-granting school in order for an H1B petition to be qualified under what is referred to as the U.S. master's cap.

Background: 65,000 General Quota for new H1Bs

As long-time MurthyDotCom readers are aware, there is an annual limitation or cap on the number of H1B petitions that can be approved each year for individuals who have not previously been counted against the annual limit. Specifically, Congress has allocated 65,000 H1B cap numbers allowing for H1B petition approvals for qualified temporary professional workers. Generally, an individual who previously has been issued an H1B visa, or otherwise held H1B status when previously counted, is able to extend her/his H1B status up to the allowed H1B duration without having to be counted against the cap again.

20,000 Cap Advanced-Degree Cap Exemptions

Additionally, there is an exemption from the 65,000 annual quota that is available to the first 20,000 H1B petitions filed each fiscal year for beneficiaries who have been granted masters' or higher degrees by U.S. institutions of higher education. In order to be considered for this exemption, petitioning employers must specifically request consideration under the advanced-degree exemption.

Master's Cap: Requirements for Institution of Higher Education

Until recently, the USCIS had been treating the master's cap petitions liberally with regard to the type of U.S. institution of higher education that granted the beneficiary's advanced degree. In recent months, however, we at the Murthy Law Firm have started receiving calls from concerned individuals about requests for evidence (RFEs) and denials of your petitions because the university, college, or school from which the beneficiary graduated did not meet the statutory requirement.

Institution Must be Public or Other Nonprofit Institution

Under the law, the beneficiary's U.S. degree must be issued by an institution of higher education that is "a public or other nonprofit institution." The institution must also be "accredited by a nationally recognized accrediting agency or association" or "granted a pre-accreditation status."

As such, problems arise when the institution issuing a beneficiary's advanced degree is a for-profit and/or an unaccredited school. Degrees from such institutions do not meet the master's cap statutory requirement and, therefore, cannot serve as a basis for an H1B petition requesting one of the 20,000 such exemptions from the regular H1B cap. Current USCIS practice for cases filed under the master's cap without a qualifying degree is to deny such cases, rather than consider them under the regular cap.

If the regular cap has been met by the time the problem is discovered, it would not be possible to re-file the case until the next cap season. In the case of unaccredited schools, care should be taken regarding any reliance on the particular degree in a re-filed case. This matter should be discussed with an immigration attorney and the risks understood and analyzed before any filing.

Conclusion

It is important to understand that not every one who has received a master's or higher degree from a U.S. institution of higher education may be eligible for the master's cap exception. Some private schools are for profit institutions and, thus, a degree from such a university or school does not fall within the terms of the U.S. master's cap exemption under the statutory mandate. Other schools may lack accreditation or pre-accreditation status by a nationally recognized accrediting agency or association. These factors should be considered when selecting a school and when filing the H1B petition by checking off the correct category. Questions on this or other H1B matters can be discussed by scheduling an appointment with a Murthy Law Firm attorney.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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