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  • Article: H-1B Masterís Cap: NOT Every Masterís Degree from a United States College or University Qualifies a Foreign National. By Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.

    H-1B Master's Cap: NOT Every Master's Degree from a United States College or University Qualifies a Foreign National.

    by








    Introduction

    Many F-1 visa holders, particularly those who are engaged in Optional Practical Training (OPT), often change their nonimmigrant 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[1]. There are an additional 20,000 H-1B visas, which are restricted to individuals who receive a masterís degree (or higher degree) from a United States college or university[2].

    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. For an individual to qualify under the masterís cap, a few criteria need to be met.

    Degree Must Qualify As a Masterís Degree.

    First, the degree must qualify as a masterís degree. To determine whether a U.S. issued degree is a masterís degree, 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 attorneys typically hold a ďJuris DoctorĒ degree (J.D.) and medical doctors hold a similar ďDoctor of 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.

    Educational Institution Must be a Public or Other Nonprofit Institution and Accredited.

    To qualify for the H-1B masterís cap, prospective H-1B Beneficiary must hold a masterís degree issued by a ďU.S. institution of higher educationĒ as defined by Section 101(a) of the Higher Education Act of 1965.

    To qualify as a ďU.S. institution of higher educationĒ as defined in section 101(a) of the Higher Education Act of 1965, the educational institution 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[3].

    Moreover, the educational institution must meet following three (3) 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.

    Illustration: Graduates Who May or May Not Qualify for the H-1B Masterís Cap.

    To illustrate, consider a case of two seemingly equivalent foreign studentsí ?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.

    Conclusion

    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: First, s/he needs to determine whether the educational institution is a private or a public institution. Also, the foreign student 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 whether the educational institution is classified as a for-profit or nonprofit 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.



    [1] 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.

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

    [3] 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.

    Reprinted with permission.


    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 is the founder and one of the Managing Attorneys in the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.- and Canada-bound workers. Attorney Nachman and fellow lawyers contributed to landmark decisions in such cases as Berger v. Berger and Woolley v. Hoffman-La Roche, Inc. The NPZ Law Group is an International Immigration Law Firm with offices in NJ and NY. The Firm has affiliated offices in Canada and India. The Firm specializes in providing assistance with waivers, removal defense, asylum, PERM, immigrant (Green Card) and various nonimmigrant visas, and immigration compliance matters for employers and employees and their families. Immigration professionals in NPZ Law Group speak many foreign languages including, but not limited to: Spanish, French, Japanese, Korean, Tamil, Hindi, Gujarati, Nepalese, Slovak, Czech, Russian, Polish, Tagalog, Hebrew, Chinese, German and English.


    Rabindra Singh Rabindra K. Singh is a Staff Attorney in the Ridgewood, New Jersey, office of Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. He is admitted to practice law in New Jersey, and India. Rabindra's work at NPZ focuses on complex employment and family-based immigration matters. From individuals to startups to multinational corporations, he has advised clients in a variety of industries, with a primary focus on the high tech, engineering, manufacturing, pharmaceutical, and financial industries. He represents clients before various immigration agencies of the Department of Homeland Security, the Department of Labor, and the Department of State. Rabindra's professional work experience also entails working with one of world's largest Information Technology (IT) Company, where he played a pivotal role in initiating the in-house processing of nonimmigrant visas. An avid writer, Rabindra writes frequently for both print and electronic media. His articles have appeared in the prestigious New Jersey Law Journal. In addition, he is a frequent contributor to the ILW.COM. Additionally, he actively writes articles for ethnic Indian newspapers.


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

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