dismissed H-1B Case: Accounting

(b)(6)
DATE: 
IN RE: 
PETITION: 
MAY 0 t 2015 
Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Imm igration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 11 01 (a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www .uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
I. PROCEDURAL BACKGROUND 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form I-129) to the Vermont Service 
Center. In the Form I-129 visa petition, the petitioner describes itself as a public accountant firm 
that was established in In order to employ the beneficiary in what it designates as a staff 
accountant position, the petitioner seeks to classify him as a nonimmigrant worker in a specialty 
occupation pursuant to section IOI(a)(IS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § IIOI(a)(IS)(H)(i)(b). 
The Director reviewed the information and determined that the petitioner did not establish eligibility 
for the benefit sought. Specifically, the Director concluded that the petitioner did not establish that 
the beneficiary has earned a master's or higher degree from a U.S. institution of higher education as 
defined by 20 U.S.C. § lOOI(a), and is exempt from the H-IB numerical limitations under section 
214(g)(5)(C) of the Act. Thereafter, the petitioner filed an appeal. 
The record of proceeding contains: (I) the petitioner's Form I-129 and supporting documentation; 
(2) the Director's request for evidence (RFE); (3) the petitioner's response to the RFE; ( 4) the 
Director's decision; and (5) the Notice of Appeal or Motion (Form I-290B/ and supporting 
documentation. We reviewed the record in its entirety before issuing our decision. 
For the reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed, and the petition will be denied. 
II. H-1B MASTER'S CAP EXEMPTION 
A. Legal Framework 
In general, H-IB visas are numerically capped by statute. Pursuant to section 214(g)(l)(A) of the 
Act, the total number of H-1B visas issued per fiscal year may not exceed 65,000 ("H-1B Cap"). In 
addition, the maximum number of H-IB visas that may be issued per fiscal year pursuant to the 
H-1B cap exemption at section 214(g)(5)(C) of the Act may not exceed 20,000 ("U.S. Master's 
Degree or Higher Cap"). 
Section 214(g)(5) of the Act states, in pertinent part: 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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NON-PRECEDENT DECISION 
The numerical limitations ... shall not apply to any nonimmigrant alien issued a visa 
or otherwise provided [H-1B status] who-
(A) is employed (or has received an offer of employment) at an institution of 
higher education (as defined in section 1001(a) of Title 20), or a related or 
affiliated nonprofit entity. 
(B) is employed (or has received an offer of employment) at a nonprofit research 
organization or a governmental research organization; or 
(C) has earned a master's or higher degree from a United States institution of 
higher education (as defined in section 1 01 (a) of the Higher Education Act of 
1965 (20 U.S.C. 1001(a)), until the number of aliens who are exempted from 
such numerical limitation during such year exceeds 20,000. 
Section 101(a) of the Higher Education Act of 1965 (Pub. Law 89-32), 20 U.S.C. § 1001(a), defines 
an institution of higher education as follows: 
(a) Institution of higher education 
For purposes of this chapter, other than subchapter IV, the term " "institution 
of higher education" means an educational institution in any State that-
(1) admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate, or persons who meet the 
requirements of section 1091 (d) of this title; 
(2) is legally authorized within such State to provide a program of 
education beyond secondary education; 
(3) provides an educational program for which the institution awards a 
bachelor's degree or provides not less than a 2-year program that is 
acceptable for full credit toward such a degree, or awards a degree that 
is acceptable for admission to a graduate or professional degree 
program, subject to review and approval by the Secretary; 
(4) is a public or other nonprofit institution; and 
( 5) is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary for the granting of 
preaccreditation status, and the Secretary has determined that there is 
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NON-PRECEDENT DECISION 
satisfactory assurance that the institution will meet the accreditation 
standards of such an agency or association within a reasonable time. 
Notably, 8 C.F.R. § 214.2(h)(8)(ii)(B) states, in part: 
Petitions indicating that they are exempt from the numerical limitation but that are 
determined by USCIS after the final receipt date to be subject to the numerical limit 
will be denied and filing fees will not be returned and refunded. 
B. Analysis 
In the Form I-129 H-1B Data Collection Supplement, Part C, the petitioner marked the item 
"1 b" to indicate that it was applying for the "U.S. Master's Degree or Higher" cap exemption. 
In the same section, at item "2," the petitioner further stated that the beneficiary is expected 
to receive a master's degree on August 20, 2014 (approximately four months after the H-1B 
petition filing) from University in In support, the petitioner 
submitted a copy of the beneficiary's transcript and a letter from University, 
which stated that "[p ]roviding [the beneficiary] successfully completes his spring 2014 
classes ( and his summ er 2014 class� ), he 
will be eligible for degree conferral in August 2014." 
Upon review of the record of proceeding, we conclude that the petitioner has not established 
that this petition is eligible for the U.S. master's degree cap exemption. Here, the beneficiary 
did not possess a master's degree at the time of filing the H-1 B petition. To qualify for the 
"U.S. Master's Degree or Higher Cap" for H-1B visas, the petitioner must demonstrate that 
the beneficiary "has earned a master's or higher degree from a United States institution of 
higher education (as defined in section 101(a) of the Higher Education Act of 1965 
(20 U.S.C. § 1001(a))." Section 214(g)(5)(C) of the Act. 
We note that in response to the Director's RFE, the petitioner submitted a second letter from 
Seton Hall University, which indicated that the beneficiary became eligible for degree 
conferral as of June 24, 2014. However, the petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(1). A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set 
of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
In response to the RFE, the petitioner further claimed that the beneficiary is qualified for the 
"U.S. Master's Degree or Higher Cap" as a combination of his education and work 
experience is equivalent to a U.S. master's degree. The petitioner submitted a credential 
evaluation from • College, the City University of As discussed, section 
214(g)(5)(C) of the Act indicates that the beneficiary must possess a "master's or higher 
degree from a United States institution of higher education (as defined in section lOl(a) of 
the Higher Education Act of 1965 (20 U.S.C. § 1001(a))" in order to qualify for the U.S. 
master's cap exemption. 
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As previously noted, 8 C.P.R. 214.2(h)(8)(ii)(B) states that the petitions indicating that they 
are exempt from the numerical limitation but are determined by USCIS after the final receipt 
date to be subject to the numerical limit will be denied. The petitioner has not established 
that the beneficiary is exempt from the H-1B cap and the numerical limit has been reached.2 
Accordingly, the Director's decision will not be disturbed. The appeal will be dismissed and 
the petition denied. 
III. CONCLUSION AND ORDER 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.3 
ORDER: The appeal is dismissed. 
2 USCIS announced that the H-1B cap for fiscal year 2015 was reached on April7, 2014. 
3 As the ground discussed above is dispositive for the dismissal of the appeal, we will not address and will 
instead reserve our determination on the additional issues in the record of proceeding with regard to the 
submission.