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  • Article: ABCs Of H-1Bs (This Is Part V Of An VIII Part Series): Does My Master's Degree Qualify Me For The H-1B Master's Cap? By David H. Nachman, Esq., Michael Phulwani, Esq. and Ludka Zimovcak, Esq.

    ABCs Of H-1Bs (This Is Part V Of An VIII Part Series): Does My Master's Degree Qualify Me For The H-1B Master's Cap?

    by


    Many F-1 visa holders, particularly those who are engaged in OPT change their immigration status to become professional and 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. There are an additional 20,000 H-1B visas, which are limited to individuals who receive a masterís degrees (or higher degree) from a United States College or University.

    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 the degree itself is or is not titled as a masterís degree is, by itself, not dispositive. For instance, in the field of Chiropractics, 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. Under this law, the educational institution, awarding the masterís degree, must satisfy five (5) requirements. First and foremost, the educational institution 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.

    Moreover, the educational institution must meet the following three other requirements: (1) the institution must admit 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) 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 the case of two seemingly equivalent foreign students ─ one holding a 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 Thunderbird is a private business school, it is a nonprofit educational institution.

    However, note that the student from the Keller School of Management will 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 a not-for-profit or a for-profit academic institution.

    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 to see 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.

    Reprinted with permission.


    About The Author

    Michael Phulwani Michael Phulwani, Esq. 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, Esq. 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.




    Ludka Zimovcak Ludka Zimovcak, Esq. is one of the Managing Attorneys at 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. Ms. Zimovcak is an experienced US Immigration Attorney with a sincere passion for excellence in immigration law. Her passion for excellence in immigration law derives from her own family's first-hand immigration experiences. As a foreign attorney herself, Ms. Zimovcak has an acute understanding of the issues facing the immigrants and she is eager to help families, businesses and individual immigrants to realize their dream of coming to the United States and legalizing their status.

    For more information about employer compliance issues and what steps that an employer can take to prepare itself for a site visit or even an I-9 Form investigation (by ICE), please feel free to contact the immigration and nationality lawyers at the Nachman Phulwani Zimovcak (NPZ) Law Group by e-mailing us at info@visaserve.com or by calling our office at 201-670-0006 (x107). Our immigration and nationality lawyers are ready to assist you and your HR staff with regard to your business immigration compliance issues.


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

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