“U.S. Institution of Higher Education” for H1B Cap Exemption Purposes

Most H1B visa applications are subject to the annual H1B visa cap found in section 214(g)(1)(A)(vii) of the Immigration and Nationality Act (INA). The H1B cap, currently set to 65,000 H1B visas each fiscal year, is a barrier to many people being approved for H1B visas.

However, section 214(g)(5) of the INA lists several situations where the annual H1B visa cap does not apply to an H1B petition:

A. If the petitioner is an institution of higher education (as defined in 20 U.S.C. 1101(a)) or a related or affiliated nonprofit entity;
B. If the petitioner is a nonprofit research organization or governmental research organization; or
C. If the beneficiary has received a master’s degree or higher degree from a U.S. institution of higher education (as defined in 20 U.S.C. 1101(a)) until the number of aliens who are exempted from the H1B cap for having a master’s degree or higher degree exceeds 20,000.

To learn more about the H1B cap exemptions in section 214(g)(5)(A)-(B), please see our full article [see article]. We discuss the master’s degree or higher degree exception in one of our main H1B articles [see article]. In this article, we will discuss 20 U.S.C. 1101(a) [PDF version], the statute upon which section 214(g)(5)(A) and (C) rely upon for the definition of “U.S. institution of higher education.” As we will find, the definition excludes from the master’s degree or higher degree H1B cap exemption those who have foreign degrees that would qualify as the equivalent of a master’s degree or higher degree for H1B degree equivalency purposes [see article for information on H1B degree equivalency].

Defining “U.S. Institution of Higher Education” for H1B Cap Exemption Purposes

Although the section 214(g)(5) of the INA relies upon 20 U.S.C. 1101(a) for a definition of “U.S. institution of higher education,” Title 20 of the U.S. Code is a set of statutes regarding federal education law rather than federal immigration law. For reference, Title 8 of the U.S. Code includes the provisions of federal law that make up the INA.

20 U.S.C. 1101(a) defines an “institution of higher education” as an educational institution in any State that meets the following requirements (each numbered subsection corresponds to a provision of 20 U.S.C. 1101(a)).

1. Student Admissions

In order to qualify as a “U.S. institution of higher education,” the institution is limited in who it can accept as a regular student. In general, the school must only admit as regular students those who have:

Obtained a certificate of graduation from a school that provides secondary education; or
Obtained the recognized equivalent of such a certificate of graduation.

The statute also notes that a “institution of higher education” may accept students who do not have a certificate described above, but otherwise qualify for student grants, loans, or work assistance under 20 U.S.C. 1091(d). This means that an “institution of higher education” may accept as regular students those who:

Are enrolled in a qualifying career pathway program (defined in 20 U.S.C. 1091(d)(2)) and meet other specific requirements found in 20 U.S.C. 1091(d)(1)(A)(i)-(iii); or
Have completed a secondary school education in a home school setting that is treated as a home school or private school under State law.

2. State Authorization

The institution must be authorized to provide a program of education beyond secondary education in the state in which it is situated.

3. Program Requirements

The school must provide at least one of the following educational programs in order to qualify as a “U.S. institution of higher education”:

Awards a bachelor’s degree;
Is a program of at least two years in length that is acceptable toward a bachelor’s degree; or
Awards a degree that is acceptable for admission to a graduate or professional degree program.

The programs are subject to the approval of the Secretary of Education.

4. Institution Status

The institution must be a public institution or other nonprofit institution.

5. Accreditation

The institution must be either:

Accredited by a nationally recognized accrediting agency or organization; or
Have been granted preaccreditation status by a nationally recognized accreditation agency or organization that has been recognized by the Secretary of Education for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accrediting agency’s or organization’s accreditation standards within a reasonable time.

Institutions that Are Not Included

Only institutions that meet the statutory description in 20 U.S.C. 1101(a) qualify for H1B cap exemption purposes. Notably, this means that “for profit” colleges and universities do not qualify for H1B cap exemption purposes. Furthermore, as we discussed in the introduction, a degree from a foreign institution of higher education does not qualify a degree-holder for a master’s degree or higher degree H1B cap exemption.

Also excluded are certain institutions defined in 20 U.S.C. 1101(b) that otherwise qualify as institutions of higher education for certain purposes under the education statutes. This includes institutions that offer training programs of at least one year to prepare students for gainful employment in a recognized occupation (and meets the requirements found in 20 U.S.C. 1101(a)(1), (2), (4), and (5)). This also includes institutions that admit as regular students, instead of those specified in 20 U.S.C. 1101(a)(1), students who are beyond the age of compulsory school attendance or who will be dually or concurrently enrolled in the institution and a secondary school.

One interesting note is that Department of Education (DOE) regulations found in 34 C.F.R. 600.4(a)(4)(i)(A) include in the definition of “institution of education” a school that has an educational program for which it awards a “professional” degree.1 This is interesting in the sense that the DOE regulations are for implementing 20 U.S.C. 1101. However, because the INA only references 20 U.S.C. 1101(a) and not the implementing regulations or 20 U.S.C. 1101(b), the DOE regulations are not binding on the USCIS and may not necessarily be applicable for H1B cap exemption purposes.

Conclusion: Applicability to H1B Cap Exemptions

If an a “U.S. institution of higher education” or a related or affiliated nonprofit entity files an H1B petition, the petition may be considered cap exempt provided that the petitioner qualifies and the beneficiary will be engaged in qualifying employment for the petitioner. Furthermore, if an H1B beneficiary has a master’s degree or higher degree from a “U.S. institution of higher education,” as defined in this article, the beneficiary will be eligible to have his or her H1B petition initially considered in the master’s degree or higher pool of applicants. If 20,000 H1B visas are afforded to those with master’s degrees or higher degrees, applicants with such degrees who did not obtain an H1B visa before the cap of 20,000 was reached may be considered with the general pool of H1B applicants.

In preparing to file an H1B petition, both the petitioner and beneficiary should consult with an experienced immigration attorney for guidance on the application process and whether the H1B visa category is the best immigration solution for their situation. If the petition may be considered cap exempt, an experienced immigration attorney will be able to assist in properly preparing the application with all of the requisite evidence.

  1. Pelta and Vazquez-Azpiri, 75 (for the pointer to the regulation, their book takes the position that it is likely that a school offering a professional degree program would qualify)

Resources and Materials:

Pelta, Elanor, and Vazquez-Azpiri, A. James. “Chapter 4: AC21 [PDF version] §103: Special Rule for H1B Beneficiaries Employed At Certain Universities and Research Facilities.” ALIA’s Focus on Immigration Practice Under AC21 [PDF version]. Washington, D.C.: ALIA Publications, 2009. 75. Print. ALIA’s Focus Ser.