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  • Article: ABC's of H-1B [Part V] BY Michael Phulwani David Nachman and Rabindra K. Singh, Esq.

    ABC's of H-1B [Part V]

    by


    DOES MY MASTERíS DEGREE QUALIFIES ME FOR THE H-1B MASTERíS CAP?

    Many F-1 visa holders, particularly those who are engaged in OPT, often change their immigration status to become professional specialty workers (H-1B workers). The H-1B cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. Most foreign nationals seeking H-1B nonimmigrant classification are subject to the 58,200 cap[i]. There are an additional 20,000 H-1B visas, which are restricted to individuals who receive a masterís degrees (or higher degree) from a United States college or university[ii].

    Immigration practitioners, F-1 students, and prospective H-1B employers should note that not every masterís degree from a United States college or university qualifies a foreign national for the additional 20,000 H-1B visas under the H-1B ďmasterís capĒ. In order for an individual to qualify for the masterís cap, a few criteria need to be met. First, the degree must qualify as a masterís degree. Additionally, the masterís degree must be issued by a ďU.S. institution of higher educationĒ as defined by section 101(a) of the Higher Education Act of 1965.

    To determine whether a U.S. issued degree is a masterís degree (for ďmasterís capĒ purposes), USCIS adjudicators consider more than the simple nomenclature of a degree. The fact that degree itself is or is not titled as a masterís degree is, by itself, not dispositive. For instance, in the field of Chiropractic, the entry-level degree is ďDoctor of ChiropracticĒ, and a bachelorís degree in any field is not required prior to obtaining that degree. On the other hand, attorneys typically hold a ďjuris doctorateĒ degree (J.D.) and medical doctors hold a similar ďdoctor or medicineĒ degree (M.D.). Prior to earning either a J.D. or M.D. degree, the holder must first earn at least a bachelorís degree in some particular academic field. Accordingly, while neither degree is likely equivalent to a Ph.D., a J.D. or M.D. degree would be considered to be equivalent to, if not higher than, a masterís degree.

    To satisfy the second prong ? the masterís degree must be issued by a ďU.S. institution of higher educationĒ as defined in section 101(a) of the Higher Education Act of 1965; the educational institution awarding the masterís degree must satisfy five (5) requirements. First and foremost, the educational institute must be a public or other nonprofit institution. Second, the masterís degree issuing institution must be accredited by a nationally recognized accrediting agency or association[iii].

    Moreover, the educational institution must meet the following three other requirements: (1) the institution must admit as regular student only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (2) such an institution must be legally authorized within such state to provide a program of education beyond secondary education; and (3) the institution must provide an educational program for which the institution awards a bachelorís degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree.

    To illustrate, consider a case of two seemingly equivalent foreign students ? one holding Master of Business Administration (MBA) degree from the DeVry Universityís Keller School of Management and the other one from Thunderbird School of Global Management. Since DeVry is a for-profit private university, holding an MBA degree from the Keller School of Management will not qualify the foreign student for the Masterís H-1B cap. The second student who received an MBA from the Thunderbird School of Global Management will qualify for the Masterís H-1B cap because, even though itís a private business school, itís a nonprofit educational institution. However, note that the student from the Keller School of Management will still qualify for the regular H-1B cap.

    Based on the foregoing, students attending or who intend to attend a masterís or higher degree program in the United States with the hope that their masterís degree would qualify him/her for the masterís H-1B cap should make two specific inquiries: (1) First, he/she needs to determine whether the educational institution is a private or a public institution; and (2) Second, he/she needs to determine whether the educational institution is classified as for-profit or nonprofit.

    Holding a masterís or a higher degree from a public educational institution will always qualify a foreign student for the H-1B masterís cap. However, when attending a private university/school it is worth checking into the issue of whether the educational institution is classified as a for-profit or non-profit organization. Like public educational institutions, receiving a masterís or a higher degree from a private non-profit educational institution will qualify the individual for the masterís cap. But, if the private school/university is a for-profit educational institution, then having a masterís or higher degree from that institution will not meet the requirements for the H-1B masterís cap. Having said that, the student would still qualify for the regular H-1B cap.



    [i] Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the nationals of Chile and Singapore (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore). The annual 6,800 H-1B1 numerical is counted against the H-1B numerical cap.

    [ii] Masterís or higher degree (or its equivalent) from a foreign university/school does not qualify an individual for the H-1B masterís cap.

    [iii] Or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such agency or association within a reasonable time.

    THIS IS PART V OF AN VIII PART SERIES.


    About The Author

    Michael Phulwani Michael Phulwani is admitted to practice law in India, New York and New Jersey. He has been practicing law for about 39 years in the field of Immigration and Nationality Law. He is admitted to practice law in New Jersey, New York, and India. He maintains law office in Maywood New Jersey, and in Mumbai India.. He has successfully handled many complex immigration matters with the Immigration and Naturalization Service and consular processing cases at American Consulates abroad especially consular posts in India. Michael Phulwani is the author of 'Guide to U.S. Visas' and numerous articles published in various ethnic newspapers and other publications in the U.S. and abroad such as News India, India Tribune and Gujarat Times. He has also co-authored a series of articles on American Consulates in India, Pakistan and Bangladesh published in "The Visa Processing Guide" by American Immigration Lawyers Association.


    David Nachman David Nachman was born in New York and is a lifetime resident of New Jersey. Following his admission to practice, Mr. Nachman was employed for three years with one of New Jersey's largest law firms in Newark, New Jersey, in Corporate and Business Law Department. Here, Mr. Nachman engaged in the business immigration law practice and he assisted with general corporate compliance and commercial litigation. Mr. Nachman, along with other firm attorneys, worked on such cases as Berger vs. Berger (a landmark decision regarding the interpretation of what constitutes a minority shareholder pursuant to the New Jersey Business Corporation Act) and Wolley vs. Hoffman-LaRoche (a landmark decision in the employment law arena concerning the legal and contractual implications arising from an employment handbook). Mr. Nachman also successfully completed nonimmigrant and immigrant visa applications for national and international businesses of all sizes in many industries then joined another premier New Jersey law firm located Middletown.


    Rabindra Singh Rabindra Singh is an immigration attorney and works closely with David Nachman and Michael Phulwani at the NPZ Law Group in Ridgewood, NJ. Rabindra graduated from the University of Kansas School of Law.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 2 Comments
    1. Ritesh Kumar's Avatar
      Ritesh Kumar -
      Dear Attorneys,
      I have a query for the above article but pertaining to EB-2. I have a candidate on H1 with other company having I-140 approved in EB-3 as he has done BCA (3 years) from India. Now, recently he completed Master of Science in Information Systems (2 year online degree course) from 'Private and for-profit' University (Stratford University, Falls Church, VA). The same is Accredited by U.S. Dept. of Education and coming under d purview of Higher Educ. Act of 1965 too. Here are the link and details for said university:

      http://en.wikipedia.org/wiki/List_of...es_in_Virginia

      http://en.wikipedia.org/wiki/Accredi...es_and_Schools (ACICS)

      The Liasion committee of AILA and NSC (Nebraska Service Center) has clarified that US Master will rectify the issue if person has 3 year Bachelors from India. Attorney Rajiv Khanna Esq. has clearly mentioned that if an online degree is accredited by Dept. of Education that the degree is good for EB-2. It is correct in my case too. Hence, It seen I can file EB-2 PERM as Masters with 0 year of Exp. with no alternate per Mr. Khanna's explanation but not meeting the requirement as per ur article. Here is the link for Rajiv Khanna blog where he clarified the same.

      3-YEAR DEGREE FROM INDIA
      Hello Rajiv,
      I am sure you have answered this multiple times but can't find an answer at this moment from the general search and would really appreciate your response. I have a 3-year bachelors from India and 16 years of experience in US. Currently I have a pending EB3 with a PD of 10/2006. I am wondering, if I do MS here (Online or Executive course), will I then qualify for EB2. Or do I need to show progressive experience from the time I get my MS. Please help.


      Rajiv S. Khanna replied on PERMALINK
      3-YEAR DEGREE FROM INDIA
      If the Master's degree is accredited, you do not need post-Master's experience for EB-2. There can be some issue about the 3+2 pattern of education, but an accredited Master's should fix it.
      Note: Not intended to create attorney-client relationship. Answers could be incomplete, incorrect or outdated. Use caution.
      - See more at: http://www.immigration.com/comment/12999#comment-12999

      I request NPZ team to clarify the above article in view of EB-2 as it seems USCIS is accepting Masters degree from 'Private-for profit' university. I can be contacted at ritz13@live.com. You will find few videos on 'Youtube' as well from Mr. Rajiv. Thanks for your time. Also, will be great if you can suggest me what is the best possible scenario to file PERM in EB-2 for my case having 12+ 3 (BCA from India) + 8 years of progressive Exp. + US 2 years MS from Stratford Univ.

      Thanks a lot NPZ team for being so active since last few months in social media. Good going....Keep it up.

      Ritesh Kumar
    1. Ritesh Kumar's Avatar
      Ritesh Kumar -
      Dear Team NPZ,
      Thanks for this article.
      I have one doubt about Masters requirement for EB-2 PERM. Here is the case:
      I have a candidate on H1B who is having 12 + 3 (BCA 3 year degree from India) + 10 years of exp. + 2 yrs. online Master of Science in Information Systems from Stratford University in 2013. The same is meeting the requirements as per Higher Education Act of 1965 as the same is duly accredited by U.S. Dept. of Education. Here are the details for the same from Wiki:
      http://en.wikipedia.org/wiki/List_of...es_in_Virginia
      http://en.wikipedia.org/wiki/Accredi...es_and_Schools

      However, it is not meeting the requirement as illustrated in your article as the same is 'Private and For-Profit' University. I understand that this University's 'grads' will not be entitled for H1 Master Quota but is this rule applicable for EB-2 process too. I'm conflicting views from Attorney Mr. Rajiv Khanna P.C. blog which identifies the Liaison outcome of AILA and NSC (Nebraska Service Center) where they accept US Master on top of 3 yr. Bachelor degree for EB-2. The only requirement I found is to be Accredited from Dept. of Education which makes my case fit for EB-2 in just Master with 0 years of Exp. with no alternate (BS+5 will not qualify my candidate). Here is the link:

      http://www.immigration.com/comment/12999#comment-12999
      QUESTION:
      3-YEAR DEGREE FROM INDIA


      Hello Rajiv,
      I am sure you have answered this multiple times but can't find an answer at this moment from the general search and would really appreciate your response. I have a 3-year bachelors from India and 16 years of experience in US. Currently I have a pending EB3 with a PD of 10/2006. I am wondering, if I do MS here (Online or Executive course), will I then qualify for EB2. Or do I need to show progressive experience from the time I get my MS. Please help.





      Rajiv S. Khanna replied on PERMALINK
      3-YEAR DEGREE FROM INDIA

      If the Master's degree is accredited, you do not need post-Master's experience for EB-2. There can be some issue about the 3+2 pattern of education, but an accredited Master's should fix it.



      Note: Not intended to create attorney-client relationship. Answers could be incomplete, incorrect or outdated. Use caution.

      ...................................................

      Please confirm if the parameters to determine Masters degree is different for USCIS in case of H1 Masters CAP and PERM EB-2 process. I understand that my case will not fly if I go as per ur articles which is correct for US Masters H1 CAP.
      Will be great if you can suggest me the best option for PERM too in above case too as BS + 5 is not possible.

      Thanks for your time.

      Regards,
      Ritesh (ritz13@live.com)
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