The H-1B season which begins on April 1st for capped petitions allows for 65,000 numbers with an additional 20,000 for those beneficiaries holding a U. S. Masters or higher degree. However, the U. S. Masters cap does not apply to those with degrees from U. S. for-profit colleges. A number of petitions were denied last year by those who asked for inclusion in the U. S. Masters cap, but attended and received degrees from for-profit colleges.

The reasoning for not including U. S. for-profit colleges is that those H-1B petitions are seeking an exemption from the 65,000 numerical limitation under the second provision for 20,000 numbers, but the limitation on use of those numbers is whether the degree is from a U. S. “institution of higher education” as defined in section 101(a) of the Higher Education Act of 1965. That Act among its other requirements states that such an educational institution “is a public or other nonprofit institution.”

Petitioners in doubt as to the standing of the beneficiary’s school can check the website of the National Center for Education Statistics (NCES) as that organization is the primary federal entity for collecting and analyzing data related to education in the country. It shows the status of colleges and universities on its website http://nces.ed.gov/collegenavigator/ and defines the “type” of institutions in terms of public, private for-profit, or private not-for-profit. Generally speaking, public colleges and universities receive the larger part of their funding from state or local taxes; private non-profit colleges and universities primarily received funding from student tuition and endowments; and private for profit colleges are run by companies to earn money for investors and shareholders.

In the event that a beneficiary for an H-1B has a U. S. Masters degree from an institution which he or she believes is misclassified by the NCES, and wishes to claim eligibility under the U. S. Masters cap, the petitioner should provide evidence that the educational institution has nonprofit status, such as a copy of the school’s articles of incorporation with the state, or a determination letter from the Internal Revenue Service of the school’s 501(c) (3) nonprofit status.

(As a footnote thought, the writer is not aware of U.S.C.I.S.’s internal procedures in accurately marking whether a case is selected under the regular 65,000 or 20,000 U. S. Masters cap, and hopes that the agency has not been simply denying petitions requesting the U. S. Masters cap (for which they were not eligible) where they were actually selected under the regular cap). Readers with any knowledge of this are invited to comment.

This article © 2015 Alan Lee, Esq. Reprinted with permission.

About The Author

Alan Lee, Esq. Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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