dismissed H-1B Case: Business Analysis

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-0-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a fuel distributor, seeks to temporarily employ the Beneficiary as a "business analyst" 
under the H-1B nonimmigrant classification for specialty occupations. .See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). H-1B visas 
are statutorily capped at 65,000 per year (H-1B Cap) but, as here, a petitioner may seek a cap 
exemption for beneficiaries who have "earned a master's or higher degree from a United States 
institution of higher education (as defined in [20 U.S.C. § 1001(a)]) .... " The statute also caps the 
number of exemptions at 20,000 per year (Master's Cap exemption). 1 
The Director of the Vermont Service Center denied the petition, concluding that the Beneficiary did 
not qualify for the claimed Master's Cap exemption. More specifically, the Director determined that 
the degree-conferring institution was a for-profit institution at the time the Beneficiary earned her 
master's degree, and thus the Beneficiary had not earned her degree, as required, from a "United 
States institution of higher education." 
On appeal, the Petitioner asserts that "there is no requirement that the University be nonprofit at the 
time that Beneficiary's degree is conferred." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Eligibility for a Master's Cap exemption is reserved for an individual who "has earned a master's or 
higher degree from a United States institution of higher education (as defined in [20 U.S.C. 
§ 1001(a)]) .... " Section 214(g)(5)(C) of the Act (emphasis added). In tum, an "institution of 
higher education" is defined, among other requirements, as "a public or other nonprofit institution." 
20 U.S.C. § IOOI(a) (2012) (originally enacted as the Higher Education Act of 1965, Pub. L. No. 
89-329, 79 Stat. 1219) (Higher Education Act) (emphasis added). 
1 See section 2I4(g)(I)(A) ofthe Act, 8 U.S.C. §I I84(g)(I)(A) (setting the 65,000 cap); section 2I4(g)(5)(C) ofthe Act, 
8 U.S.C. §I I84(g)(5)(C) (providing for 20,000 exemptions). · 
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Matter of S-S-0-, Inc. 
II. UNITED STATES INSTITUTION OF HIGHER EDUCATION 
First, we must determine when a beneficiary "has earned" a master's degree from "a United States 
institution of higher education" for purposes of the Master's Cap exemption. In this matter, the 
Petitioner claimed an exemption under the Master's Cap on the basis of the Beneficiary's master's 
degree from The record, however, does not contain evidence that, on January 
12, 2014, when the Beneficiary earned her degree, was a public or nonprofit 
institution. Rather, the record reflects that did not acquire nonprofit status until 
February 3, 2015. Therefore, we conclude that the Beneficiary did not "earn" a U.S. master's degree 
from an "institution of higher education" as required by section 214(g)(5)(C) of the Act and defined 
at 20 U.S.C. § 1001 (a) (2012). 
We construe these provisions to require that the institution's qualifications must be established at 
the time it confers the beneficiary's degree. The time the institution confers the degree best 
represents when the beneficiary has actually "earned" the degree by completing all substantive 
requirements of his or her program of study.2 By extension, we must consider the institution's 
qualifications, including its for-profit status, at the time of the degree was earned and conferred. 3 
On appeal, the Petitioner asserts that because became a nonprofit institution by 
the time this petition was filed, the Beneficiary was eligible for the Master's Cap exemption. 
However, the plain language of these provisions requires a graduate to have earned a degree "from a 
United States institution of higher education." By definition, a United States institution of higher 
education must be "a public or other nonprofit institution." This condition could not be satisfied if 
an institution only achieves nonprofit status at some later time, after the degree was earned and 
conferred. 
Moreover, the Petitioner's proffered interpretation introduces uncertainty for graduates seeking 
immigration benefits over time. An individual's eligibility for the Master's Cap exemption could 
change along with status of his or her alma mater. 4 In contrast, under our interpretation, an 
individual who earns a degree from a qualified institution may continue to be eligible for the 
Master's Cap exemption even if the institution's status later changes. 
2 We must conduct a case-specific analysis to determine whether the individual has completed all substantive 
requirements when the degree was earned and conferred . See· Matter of 0-A- , Inc., Adopted Decision 2017-03 (AAO 
Apr. 17, 20 17). For example, if the conferring institution later revokes the degree because it was improperly granted or 
obtained through fraudulent means, we will not consider the degree to have been "earned." 
3 A petitioner bears the burden to establish that all substantive requirements for the degree were met and the degree was 
in fact approved by the responsible college or university body at the time of degree conferral. See id. 
4 
Notably, the U.S. Department of Education announced in December 2016 that it no longer recognizes the Accrediting 
Council for Independent Colleges and Schools, the same accrediting agency which accredited An 
institution of higher education is defined, among other requirements, as a public or nonprofit educational institution that 
"is accredited by a nationally recognized accrediting agency or association .... " While this change is not applicable to 
this case, it highlights the uncertainties for graduates seeking immigration benefits over time under the Petitioner 's 
interpretation. 
2 
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Matter of S-S-0-, Inc. 
Because the record does not establish that was a nonprofit institution in 2014 
when it conferred the degree, we conclude that the Beneficiary did not earn her degree from "an 
· institution of higher education" and is thus ineligible for the Master's Cap exemption. 
III. ALTERNATIVE BASIS OF ELIGIBILITY 
In response to the Director's notice of intent to deny the petition, the Petitioner contended that, even 
if the Beneficiary cannot qualify for a Master's Cap exemption, U.S. Citizenship and Immigration 
Services (USCIS) should also examine her eligibility under the general H-lB Cap. But the relevant 
regulation generally does not permit H-lB petitioners to claim eligibility under alternative grounds: 
"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 .... " 8 C.F.R. 
§ 214.2(h)(8)(ii)(B) (emphasis added). The "final receipt date" is when US CIS notifies the public 
that it has received sufficient numbers of petitions to reach the H-1 B Cap. The "determination date" 
for a beneficiary's cap exemption is the date on which users articulates its adjudication in a 
decision properly served upon a petitioner. See 8 C.F.R. §§ 103.2(b)(19), 103.3(a)(l)(i) , and 
103.8(a). 
Here, the Director's determination of cap ineligibility was issued after the final receipt date, and so 
the petition was properly denied. On April 2, 2015, the Petitioner filed the H -1 B petition which 
indicated that the Beneficiary's master's degree from qualified her for the 
Master's Cap exemption.5 On April 7, 2015, USCIS issued a notice that, as of that date, it had 
received sufficient numbers ofH-1B petitions to reach the H-1B Cap for FY16.6 Therefore, April 7, 
2015, is the FY16 "final receipt date," for acceptance of cap subject H-lB petitions. Because the 
Director determined on August 26, 2015, after that final receipt date, that the Beneficiary was 
ineligible for a Master's Cap exemption, the Director must and properly did deny the petition 
without considering eligibility under the general H-lB Cap. 
' IV. CONCLUSION 
The Petitioner has not established that the Beneficiary is eligible for the Master's Cap exemption.7 
5 Because the FYI6 H-IB cap filings exceeded the numerical limit and Master 's Cap exemption permitted by statute , 
USCIS used a computer-generated random selection process (commonly known as the "lottery") to determine which 
petitions would be selected for adjudication. The agency conducted the lottery for the Master's Cap exemption first, and 
all petitions not selected were part of the random selection process for the general 65,000 cap. The Beneficiary in the 
instant case was granted a number under the Master's Cap exemption and was therefore not granted one of the general 
65,000 cap numbers . 
6 See https://www.uscis.gov /news/alerts/uscis-completes-h-l b-cap-random-selection-process-fy-20 16 (last visited Apr. 
21, 2017). 
7 
As this issue is dispositive of the Petitioner's appeal , we will not address other grounds of ineligibility identified in the 
record, including the insufficient evidence establishing the proffered position as a specialty occupation . 
3 
Matter of S-S-0-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-0-, Inc., ID# 96174 (AAO Apr. 25, 2017) 
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