USCIS adopts ruling on H-1B advanced degrees

5 Jun 17

UNITED STATES

U.S. Citizenship and Immigration Services (USCIS) has issued a policy memo that adopts a case involving the H-1B master’s degree cap as binding guidance to be followed by USCIS officers.

The case, Matter of A-T- Inc, clarifies that in order for an individual to qualify for the H-1B cap exemption based upon a master’s or higher degree, the educational institution must have qualified as a “U.S. institution of higher education” at the time the beneficiary’s degree was earned.

Key points:

  • The educational institution must hold accreditation or “pre-accreditation” status at the time the H-1B candidate’s degree is earned in order to qualify under the H-1B master’s exemption.
  • Individuals who are awarded a master’s (or higher) degree before the institution receives their accreditation or pre-accreditation status will not qualify under the H-1B cap exemption, even if the status was conferred during adjudication of the H-1B petition.

Background: The H-1B quota is set at 65,000 annually for individuals holding a minimum undergraduate degree, plus an additional 20,000 candidates who are exempt from the cap if they hold a master’s or higher degree from a “U.S. institution of higher education.” The statute defines that term as an institution that “is accredited” or “has been granted pre-accreditation status.”

The individual in the case earned a master’s degree on Dec. 31, 2010. The school received its pre-accreditation status in 2017. The H-1B employer argued that the employee qualified because he held the degree during adjudication of the H-1B petition. But the Administrative Appeals Office disagreed, interpreting the statute to require that the institution hold accreditation or pre-accreditation status at the time the individual is granted the degree.

The AAO noted that under this interpretation, the individual’s eligibility for the exemption does not change according to the institution’s accreditation status, and an individual may continue to qualify for the master’s exemption even if the institution later closes or loses its accreditation status.

BAL Analysis: The decision provides clarity on this issue. Employers should anticipate that USCIS will deny H-1B master’s cap exemptions to individuals if, on the date the degree is granted, the institution has not yet received accreditation or pre-accreditation.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@balglobal.com.

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