In the past year, many H-1B petitions have received denials based on the university at which the Beneficiary earned their U.S Master’s degree. In order to file under the U.S Master’s Cap Quota, a Beneficiary’s degree must meet the statutory education requirements. These requirements, while well established, can cause some confusion. Therefore, this article will explore the two following questions:
(1) What are the education standards required by USCIS in order to file under the U.S Master’s Cap for H-1B?
(2) If a Beneficiary does not qualify for the U.S Master’s Cap, how should their case be approached?
In order to file an H-1B under the U.S Master’s Cap, there are certain requirements that must be met. A failure to adhere to these requirements results in Requests for Evidence and often, denials. Therefore, strict attention to the statutory language is imperative when deciding whether or not the U.S Master’s Cap applies. The relevant statutory language is provided below:
Section 101(a) of the Higher Education Act of 1965:
INSTITUTION OF HIGHER EDUCATION- For purposes of this Act, other than title IV, the term institution of higher education’ means an educational institution in any State that–
(1) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) Is legally authorized within such State to provide a program of education beyond secondary education;
(3) Provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) Is a public or other nonprofit institution; and
(5)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 Secretary 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 a reasonable time.
In previous years, USCIS treated the Master’s Cap petitions liberally with regard to the type of U.S institution of higher education that granted the beneficiary’s advanced degree. This past year, however, there were a large number of RFEs and subsequent denials holding that beneficiaries had graduated from a university, college, or school which did not meet the statutory requirement. It is apparent, therefore, that USCIS is applying the statute more strictly than in the past and therefore the guidelines must be thoroughly considered. Currently, the law stands as follows:
The Institution Must be a Public or Other Nonprofit Institution
Under the law, to qualify for the U.S Master’s Cap, the Beneficiary’s U.S degree must be issued by an institution of higher education that is “a public or other nonprofit institution.” Therefore, if a school is “for-profit,” USCIS will hold that the degree does not meet the Master’s Cap statutory requirement. This is important because many private schools are for-profit institutions. Therefore, in deciding whether one can apply under the U.S Master’s Cap, it is important to check whether the institution at which the degree was earned is “for-profit” or whether the intuition is public or nonprofit. This can usually be done by simply checking the institution’s website. If you are unsure, you can also call the institution and simply ask.
The Institution Must Be Accredited
Similarly, under the law, the institution must also be “accredited by a nationally recognized accrediting agency or association” or “granted a pre-accreditation status.” This is a multi-faceted requirement. Not only must the institution be accredited, it must also be accredited by a national recognized accrediting agency or association. If the accrediting agency or association is not nationally recognized, the school will be considered not accredited for purposes of meeting the statutory requirements for Master’s Cap purposes. In order to determine whether an institution is accredited or has been granted pre-accredited status, you can check the institution’s website or simply call the school. If the institution is NOT accredited by a nationally recognized institution, applying under the U.S Master’s Cap will result in an RFE and almost certainly a denial. In the past year, as evidenced by the number of RFEs and denials, USCIS has taken this requirement very seriously. As such, it is important to strictly adhere to the statutory requirement in order to obtain a favorable decision in applying under the Cap.
According to the U.S Department of Education, the following regional and national accrediting agencies are recognized by the Secretary as reliable authorities concerning the quality of education or training offered by the institutions of higher education or higher education programs they accredit:
- Accrediting Council for Continuing Education and Training
- Accrediting Council for Independent Colleges and Schools
- Council on Occupational Education
- Distance Education and Training Council, Accrediting Commission
- Middle States Commission on Higher Education
- Middle States Commission on Secondary Schools
- New England Association of Schools and Colleges, Commission on Institutions of Higher Education
- New York State Board of Regents, and the Commissioner of Education
- North Central Association of Colleges and Schools, The Higher Learning Commission
- Northwest Commission on Colleges and Universities
- Southern Association of Colleges and Schools, Commission on Colleges
- Transnational Association of Christian Colleges and Schools, Accreditation Commission
- Western Association of Schools and Colleges, Accrediting Commission for Community and Junior Colleges
- Western Association of Schools and Colleges, Accrediting Commission for Senior Colleges and Universities
This list should be used as guidance in determining if an institution meets the accreditation/preaccreditation requirement. If in an institution is accredited by an agency that is not listed above as recognized by the Secretary of the U.S Department of Education, USCIS will not accept the institutions’ accreditation/preaccreditation status for purposes of meeting the statutory requirement. Therefore, if an institution is accredited by an agency that is not listed above or lacks accreditation from any agency at all, the H1B will receive a denial if filed under the U.S Master’s Cap.
These factors should be carefully considered when selecting a school to complete a U.S Masters as well as when filing the H1B petition in order to ensure the petition is filed under the right category. Failure to apply under the right category can be detrimental to an H1B petition. Current USCIS practice for cases filed under the U.S Master’s Cap without a degree from a qualifying institution is to deny such cases, rather than consider them under the regular gap. If the regular cap has been met when USCIS discovers a problem with a U.S Master’s institution, it is too late to be considered under the regular cap. Therefore, filing under the wrong category will usually result in a denial without a possibility of re-filing until the next cap season.
How Non-Qualifying Degrees Should Be Approached:
If a Beneficiary holds a Master’s Degree from an unaccredited or for-profit school, the Beneficiary should refrain from filing under the U.S Master’s Cap and instead file under the regular H1B cap. In filing under the regular H1B cap, the Beneficiary’s U.S Masters can still be considered, but in conjunction with the Beneficiary’s Bachelor degree. While the Master’s is still part of the Beneficiary’s education, it does not meet the statutory requirement to be considered for the U.S Master’s Cap and therefore the regular H1B cap is the only option available. Filing under the Master’s Cap under these circumstances will result in an unfavorable decision.
This past year, USCIS strictly enforced the requirements of Section 101(a) of the Higher Education Act of 1965. In preparing for the 2014 H1B cap season, it is thus critical to make sure the statutory requirements are strictly adhered to. Namely, if a Beneficiary’s U.S Master’s degree is from a school which is either unaccredited or for-profit, they should be advised NOT to apply under the U.S Master’s cap. For these Beneficiaries, failure to apply under the regular H1B cap will almost certainly result in a denial. In order to avoid this result, a U.S Master’s degree should be heavily scrutinized to ensure it meets the requirements set forth in Section 101(a) of the Higher Education Act of 1965.