University Must be Accredited When Degree Awarded for Master’s Cap

The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 23, 2017 that adopts the Administrative Appeals Office (AAO) decision in Matter of A-T- Inc. The adopted decision serves to instruct USCIS personnel that, for purposes of determining whether a person qualifies for the H1B advanced-degree exemption (i.e. the “master’s cap”), the university must have been accredited at the time the degree was awarded.

Facts of the Case

In Matter of A-T- Inc., an H1B petition was filed for the master’s cap in 2013 on behalf of a foreign national who had earned a master’s degree from an unaccredited U.S. university in 2010. By the time the petition was filed, however, the university had gained accreditation status. The USCIS denied the petition, noting that the university must be accredited at the time the degree is issued in order to qualify.

On appeal before the AAO, the petitioning employer argued that the accreditation status at the time the degree is issued should not be controlling. Rather, the USCIS should look to see whether the university is accredited at the time the H1B petition is adjudicated. The AAO rejected this argument, noting that, for purposes of qualifying for the master’s cap, “the institution’s qualifications must be established at the time the degree is earned.”

The Murthy Law Firm had no personal involvement in this case. Since this is an “adopted” decision, this summary is provided for the benefit of MurthyDotCom readers.

Decision Should Benefit ACICS Students for H1B Master’s Cap Purposes

Although Matter of A-T- Inc. involved a foreign national who earned a master’s degree before the university became accredited, the AAO also noted, “an individual who earns a degree from [an] accredited institution may continue to qualify for the master’s cap exemption even if the institution later closes or loses its accreditation status.” This latest development should be welcome news for many foreign nationals of universities that were accredited by the Accrediting Council for Independent Colleges and Schools (ACICS), which had its status as a nationally recognized accrediting agency terminated by the U.S. Department of Education in 2016.

Unfortunately, this adopted decision is unlikely to benefit those who graduated from an ACICS accredited school with a qualifying STEM degree and who then apply for a STEM OPT extension. As explained in the MurthyDotCom NewsBrief, STEM OPT Eligibility Unlikely Following School’s Loss of Accreditation (30.Jan.2017), the STEM OPT regulation specifically requires that the degree be from a U.S. university that is accredited “… at the time of application.” No such language exists in the statute related to the master’s cap.

Conclusion

This adopted decision by the USCIS should remove some of the ambiguity and inconsistency seen in the past when accreditation issues arose. It is unfortunate that this same logical reasoning has not been extended and applied in the STEM OPT extension scenario.

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