I graduated from an accredited, private, for-profit university with a master’s degree in electrical engineering. …

… I applied for and obtained OPT authorization. My employer filed my H1B petition under the masters’ quota, based on my degree. However, the USCIS issued a notice of intent to deny because my degree did not qualify for an exemption from the annual limitation on the number of H1B visas (masters’ cap) since my degree was not from a non-profit or public school. Is the USCIS correct? What should my employer and/or I do?

Answer:

Under the law, to qualify for the masters’ cap, the degree should be awarded by a public or non-profit U.S. accredited institution of higher education. Many employers overlook this requirement when they request that the petition be exempt from the regular H1B cap based on the master’s degree from a private school. One may argue that the USCIS has discretion to treat this petition as if it were filed under the regular cap, but the USCIS is not likely to accept this argument in all cases. If the H1B petition is denied for this reason and you still have valid OPT authorization, it should not affect your ability to continue employment. Your employer then should refile your petition next year under the regular cap, if you have at least the equivalent of a U.S. bachelor’s degree from an accredited school in the relevant field. (15.Nov.2013)

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