USCIS Issues Memo on Advanced Degree Cap Exemption
Posted May 12, 2006
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The U.S. Citizenship and Immigration Services (USCIS) issued a memo on May 2, 2006. The subject of the Memo is cases that may be exempt from the 65,000 H1B standard cap if they qualify for the 20,000 H1B numbers available to persons with U.S. masters' degrees or higher education. MurthyDotCom and MurthyBulletin readers were advised on the likelihood of this Memo and some of the issues that it would likely address in our May 5, 2006 article, H1B News: Possible Memo; Gap-Relief Not Likely, available on MurthyDotCom.
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Only Count Against Advanced Degree Cap If No Other Exemptions
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This May 2, 2006 Memo reminds adjudicators that, if an H1B case is cap exempt, it should not be counted against the advanced degree cap or the standard H1B quota. Therefore, the level of evaluation should be to: (a) determine if there is any complete cap exemption for a filing; (b) if not, determine if there is an advanced degree cap exemption available for a filing; and (c) only then, count an H1B filing against the standard H1B quota.
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Nature of U.S. Education or Degree
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Not every U.S. degree other than a bachelor's degree is considered an advanced degree. The May 2nd Memo instructs adjudicators to look at whether a bachelor's degree is a prerequisite to obtaining the master's degree or higher. If a bachelor's degree is a required prerequisite for making an eligible application to the degree program, then the degree will qualify as an advanced degree. If a bachelor's degree is not required for admission into a particular program, that degree will not qualify for this additional 20,000 H1B exemption. The Memo does not specify what will happen if a person should obtain dual degrees through a course of study. Though, presumably, if one of the degrees is a bachelor's degree and the other is commonly held to be a master's or higher degree, this should be acceptable. The Memo explains that certain degrees, such as the J.D. (Juris Doctor or law degree) or M.D. (Medical Doctor), require the holder first to have a bachelor's degree. These degrees are considered at least equal to, if not beyond, a master's level. Conversely, the Memo points out, for example, that the degree of Doctor of Chiropractic is the entry-level degree in the field, without the prerequisite of a bachelor's degree, so it does not count as an advanced degree for the 20,000 H1B cap exemption purposes.
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Nature of Issuing Institution
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In order to qualify as a master's degree or higher, the Memo explains that the degree must be issued by a U.S. educational institution located in any state that: (a) admits as regular students only persons having a certificate of graduation from a school providing secondary education or the recognized equivalent of such a certificate; (b) is legally authorized within such state to provide a program of education beyond secondary education; (c) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree; (d) is a public or other nonprofit institution; and (e) 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 agency or association that has been recognized by the secretary 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.
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Conclusion
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We at the Murthy Law Firm thank the USCIS for its guidance on this matter. We trust that the other topics mentioned in our May 5, 2006 article, cited above, will be released soon to clarify other issues dealing with H1B petitions under the existing law.