H1B “Master’s Cap” Pitfalls: Cautionary Reminder08 Mar 2021
With the arrival of fiscal year 2022 (FY22) H1B cap season, foreign nationals and employers should be aware of some important nuances of the H1B advanced-degree exemption, often referred to as the “master’s cap.” Clearly, the 20,000 H1B cap exemptions can be quite valuable for those who qualify. However, mistakenly filing a petition under the master’s cap for someone who does not actually qualify for this exemption is likely to result in future denial or revocation of a previously approved petition.
School Must be Accredited and Public, or Other Nonprofit
There are 20,000 additional H1B numbers (technically, exemptions) available on top of the regular H1B cap limit of 65,000. These additional H1B numbers are available to those who have completed a master’s (or higher) degree from a U.S. college or university that meets two specific requirements. The first requirement is that the school must be properly accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Second, the school must be a public university or other nonprofit institution. If either of these requirements is not met, the degree does not qualify the individual for the H1B master’s cap exemption.
School Must Be Accredited When Degree is Issued
To qualify for the master’s cap, the university must be accredited as of the date the advanced degree is awarded. If a person graduates from a school prior to its accreditation, then the degree cannot be used to qualify for the master’s cap. Conversely, if a school is accredited at the time a student graduates, but subsequently loses its accreditation, this does not impact the student’s eligibility for the master’s cap.
Degree Required to File Petition, but Not Necessary for H1B Registration
In order to qualify for the master’s cap, the candidate should have been awarded the advanced degree – or at least completed all of the requirements for the degree – by the time the cap-subject H1B petition is filed. There is no requirement, however, that the degree must be earned by the time the H1B registration is submitted.
As discussed in the MurthyDotCom NewsBrief, FAQs on FY22 H1B Cap and the Electronic Registration System (11.Feb. 2021), H1B registrations for the upcoming lottery must be submitted between March 9 and March 25, 2021. In submitting the registration, the employer must indicate whether the beneficiary qualifies for the master’s cap. If one’s registration is selected, the H1B petition then must be filed within a 90-day window, which, in most cases, will run from April 1 through June 30, 2021. This means that if the advanced degree will be obtained before the end of June, one should be able to register under the master’s cap; if the registration is selected, the employer then will need to wait until after the individual graduates, but before July 1, 2021, to file the petition.
USCIS Strictly Applying Advanced-Degree Cap Exemptions
The USCIS typically denies a petition filed improperly against the master’s cap. What’s more, the USCIS tends to apply the rules strictly for determining whether a degree from a particular school satisfies the master’s cap requirements. There was a time when this was not the case. As a result, there are individuals with master’s cap H1B approvals from years ago, based on degrees that actually do not satisfy the strict legal standards. Periodically, the Murthy Law Firm hears from individuals who have either requests for evidence (RFE) or notices of intent to revoke (NOIR) based on master’s cap issues from years past.
If a registration is submitted under the master’s cap, but the beneficiary will not qualify for the master’s cap by the time the H1B petition is filed, the USCIS should deny the petition. It is vital that the beneficiary register under the master’s cap only if all of the requirements are met.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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