USCIS Adopts AAO Decision Holding that for Master's Cap Exemption, Institution Must be Accredited at Time Degree is Awarded

Master's Cap exemption

 

Introduction

On May 23, 2017, the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum (PM) adopting a decision of the Administrative Appeals Office (AAO) as binding USCIS policy. The adopted decision is titled the Matter of A-T- Inc, Adopted Decision 2017-04 (AAO May 23, 2017).

The Matter of A-T- clarifies existing rules relating to qualifying for an H1B cap exception based on having been awarded a master's degree or higher. Specifically, the AAO held that the institution conferring the advanced degree to the H1B beneficiary must have qualified as a “United States institution of higher education” at the time the beneficiary's degree was earned.

In this article, we will discuss the facts and procedural history of the Matter of A-T-, the AAO's reasoning and decision, and what the decision will mean going forward now that it is binding on all USCIS employees. To follow along, please see the PM issued by the USCIS designating the Matter of A-T- as an adopted decision, which also includes the text of the decision itself [see PM-602-0145]. Please also see our full article to learn about different types of AAO decisions — including adopted decisions — and for a list of adopted decisions that are currently in effect as USCIS policy [see article].

Facts and Procedural History

The Petitioner sought to employ the Beneficiary as an H1B nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA). H1B visas are subject to an annual cap of 65,000. However, a petitioner may seek a cap exemption for a beneficiary who has “earned a master's or higher degree from a United States institution of higher education (as defined in … 20 U.S.C. 1101(a))…” (“Master's Cap exemption”). There is a separate Master's Cap exemption pool of 20,000 H1B visas.

The Petitioner sought a Master's cap exemption for the Beneficiary. The Director of the California Service Center denied the H1B petition on the basis that the beneficiary did not qualify for the Master's Cap exemption. Specifically, the Director found that the institution that conferred the master's degree on the beneficiary was not accredited at the time it awarded the degree. Accordingly, the Director concluded that the Beneficiary had not earned his degree from a “United States institution of higher education,” notwithstanding that the institution was accredited subsequent to awarding the Beneficiary with the degree.

The Petitioner appealed the Director's decision to the AAO on two grounds:

1. That the INA does not require that the advanced degree be from a United States institution of higher education at the time the degree is awarded (this includes accreditation); and
2. In the alternative, the USCIS should have adjudicated the petition under the general H1B cap if it determined that the beneficiary was not eligible under the Master's Cap exception.

The AAO reviewed the issues de novo (from the beginning). Ultimately, the AAO dismissed the appeal. In the forthcoming sections, we will explain the AAO's reasoning and the new rules it set forth.

1. Institution's Qualifications Must be Established at the Time the Degree is Earned

The AAO explained that the Beneficiary earned his master's degree from the International Technological University (ITU), in California, on December 31, 2010. At the time the Beneficiary was awarded his degree, ITU had yet to obtain either preaccreditation or accreditation status. The case record contained a letter from the ITU that stated that the Accrediting Commission for Senior Colleges and Universities of the Western Association of Schools and Colleges (WASC) granted the ITA “Candidacy status” in 2011. The AAO explained in a footnote that the WASC is considered by the United States Department of Education to be a reliable authority concerning the quality of education offered by institutions it accredits. The WASC website explains that candidacy status is the same as preaccreditation status. Under statute, an institution that was granted preaccreditation status would qualify under 20 U.S.C. 1001(a).

The Petitioner argued that the above facts were sufficient for establishing that the Beneficiary qualified for the Master's Cap exemption. The Petitioner reasoned that the master's or higher degree does not have to be from a United States institution of higher education that was accredited at the time the degree was awarded in order to qualify for the exemption. In short, the Petitioner's opinion was that the question was not whether the institution was accredited at the time the degree was awarded, but rather whether it was accredited at the time the H1B petition was adjudicated.

The AAO disagreed with the Petitioner's position.

The AAO quoted from the key statute, section 214(g)(5)(C) of the INA, while emphasizing the pertinent phrases:

Eligibility for a Master's Cap exemption is reserved for an individual who 'has earned a master's or higher degree from a United States institution of higher education (as defined in … 20 U.S.C. 1001(a))…

The AAO then quoted from the pertinent portion of 20 U.S.C. 1001(a), defining the term “institution of higher education” as a public or nonprofit educational institution that (key points italicized by the AAO):

is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the [U.S. 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 accreditation standards of such an agency or association within reasonable time.

The AAO noted that in the context of the H1B Master's Cap exemption, the statute does not expressly state when an institution must have been accredited or preaccredited. However, for reasons that will follow, the AAO determined that the institution in question must have been accredited at the time the H1B beneficiary was awarded his or her degree, rather than at some point thereafter but before the adjudication of the H1B petition.

First, the AAO noted that requiring that the institution have been accredited or preaccredited at the time of the awarding of the degree “helps ensure the quality of education necessary to merit a Master's Cap exemption.” Second, the AAO took the position that the Petitioner's interpretation could lead to unintended results. For example, it would be possible for an H1B beneficiary to be awarded an advanced degree from an institution that would only become accredited or preaccredited many years after awarding the degree but before the adjudication of the H1B petition. In such a case, the beneficiary's degree “would not necessarily reflect the quality of the beneficiary's education.” Thirdly, the AAO noted that the Petitioner's interpretation would make it possible for a beneficiary to be awarded a degree from an accredited or preaccredited institution, only to subsequently be found ineligible for the Master's Cap exemption because the institution lost its accreditation between the issuance of the degree in question and the adjudication of the H1B petition.

Conversely, the AAO explained that its interpretation was most appropriate for determining the value of an H1B beneficiary's degree at the time of issuance. This would also ensure that a beneficiary who obtained a degree from an institution that subsequently lost accreditation would remain eligible for the H1B Master's Cap exemption.

However, in a footnote, the AAO made clear that if an institution itself revokes a degree on the basis of its having been improperly granted or obtained through fraud, the degree would not be considered as having been earned.

2. Petitioner Ineligible Under General Cap in Instant Case

The Petitioner argued that, in the event the AAO agreed that the Beneficiary did not qualify for a Master's Cap exemption, the Beneficiary should have still been eligible to be placed in the general H1B pool.

The AAO noted that under 8 C.F.R. 214.2(h)(8)(ii)(B), if H1B petitions seeking exemptions from the general H1B cap are determined by the USCIS to not qualify for the exemption after the final receipt date for the general H1B pool, the petitions must be denied. The AAO explained that the “final receipt date” refers to the date on which the USCIS notifies the public that it received sufficient numbers of H1B petitions to reach the annual H1B cap. For example, please see our short post on the notice issued by the USCIS when it received a sufficient number of petitions to meet the FY-2018 H1B cap [see blog].

The AAO found that in the instant case, the Director determined that the Beneficiary was ineligible for the Master's Cap exemption after the final receipt date for the general H1B pool. Therefore, the AAO held in accordance with 8 C.F.R. 214.2(h)(8)(ii)(B) that the Director properly denied the petition without considering it for eligibility under the general H1B cap.

3. Decision

For the foregoing reasons, the AAO determined that the Petitioner failed to establish that the Beneficiary was eligible for the Master's Cap exemption. Furthermore, the AAO found that the Director correctly denied the petition without considering eligibility under the general H1B cap. For those reasons, the AAO dismissed the appeal.

Conclusion

The AAO made clear that in order to qualify for a Master's Cap exemption, the school which conferred a master's degree to the beneficiary must have been a qualifying United States institution of higher education at the time the degree was earned.

In addition to the USCIS adopting a clear policy on an important aspect of adjudicating Master's Cap petitions, the decision highlights that seeking an exemption from an H1B cap for a petition that is not eligible for such an exemption may, depending on timing, lead to the outright denial of the petition. Before filing an H1B petition, a petitioner should consult with an experienced immigration attorney. An attorney will be able to determine if the H1B category is appropriate for the proposed employment, and if so, how to best file the petition.

Please see our category of articles on H1B visas to learn more about the issues in general [see category].