dismissed H-1B Case: Data Engineering

MATTER OF C-C-C-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 28,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a cable, internet, and telephone services company, seeks to extend its employment of 
the Beneficiary as a "Lead Data Quality Engineer (Engineer 3)" under the H-1 B 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). The H-lB program allows a U.S. employer to 
temporarily employ a qualified foreign worker in a position that requires both (a) the theoretical and 
practical application of a body of highly specialized knowledge and (b) the attainment of a 
bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum prerequisite for 
entry into the position. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish the Beneficiary's qualification for the Master's Cap exemption pursuant to section 
214(g)(5)(C) ofthe Act, 8 U.S.C. § 1184(g)(5)(C). 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
his finding. 
Upon de novo review, we will dismiss the appeal. 
I. H-lB CAP EXEMPTION 
A. Legal Framework 
Pursuant to section 214(g)(l)(A) of the Act, the total number ofH-1B visas issued per fiscal year may 
not exceed 65,000. This numerical cap on H-lB visas is commonly referred to as the "H-lB Cap." 
Section 214(g)(5)(C) of the Act exempts up to 20,000 H-1B nonimmigrants who have earned a U.S. 
master's or higher degree from being counted towards the H-1B Cap. This exemptio11is commonly 
referred to as the "Master's Cap." More specifically, section 214(g)(5) of the Act states: 
The [H-lB] numerical limitations ... shall not apply to any nonimmigrant alien 
issued a[n H-1B] visa or otherwise provided [H-lB status] who-
Matter of C-C-C-, LLC 
(A) is employed (or has received an offer of employment) at an institution of higher 
education (as defined in section lOOl(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 101 (a) of the Higher Education Act of 1965 (20 
U.S.C. 100l(a)), until the number of aliens who are exempted from such 
numerical limitation during such year exceeds 20,000. 
An "institution ofhigher education" is defined as 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 [U.S. Secretary ofEducation]; 
(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 [U.S. 
Secretary of Education] for the granting ofpreaccreditation status, and the [U.S. 
Secretary of Education] has determined that there is satisfactory assurance that 
the institution will meet the accreditation standards of such an agency or 
association within a reasonable time. 
20 U.S.C. § 1001(a) (2012) (originally enacted as the Higher Education Act of 1965, Pub. L. No. 89-
329, 79 Stat. 1219) ("Higher Education Act") (emphasis added). 
The regulation at 8 C.F.R. § 214.2(h)(8)(ii)(B) states that petitions indicating that they are exempt 
from the H-1B Cap, but are later determined by U.S. Citizenship and Immigration Services (USCIS) 
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Matter of C-C-C-, LLC 
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after the final receipt date to be subject to the H -1 B Cap, will be denied and filing fees will not be 
returned or refunded. 
B. Procedural and Factual History 
The Petitioner filed this petition on October 4, 2016, seeking to extend the Beneficiary's 
employment in fiscal year 2017 (FY17) with the employment commencing on March 24, 2017. 
US CIS records confirm that an H -1 B petition , filed on August 22, 20 11, was 
approved on behalf of the Beneficiary on November 8, 2012, under the Master's Cap. 
On the Form 1-129, H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (Form 
1-129 Supplement), the Petitioner marked that the petition was "CAP exempt" in FY17 since it was 
requesting an extension of stay for the Beneficiary's current H-1B classification. Further, the 
Petitioner selected "Master's degree" when indicating the Beneficiary's highest level of education on 
this same form. The Petitioner stated, and the record corroborates, that the Beneficiary earned a 
master of science degree majoring in computer science from the m 
2010. 
The Director indicated that the Beneficiary was not qualified for the Master's Cap exemption 
because the was, and is, not an accredited institution of higher 
education. Further, the Director found that there was no evidence that the Beneficiary had been 
counted against the regular H-1B cap in FY12, as asserted by the Petitioner. The Director concluded 
that since the H-1B Cap for FY17 had been reached on April 7, 2016, and the petition was filed after 
that date, there was no cap number available for the current petition. 
On appeal, the Petitioner asserts that the petition approved on behalf ofthe Beneficiary in FY12 was 
not counted against the Master's Cap, but against the regular H -1 B Cap. The Petitioner states that 
the prior petitioner filing on behalf of the Beneficiary for FY12 became aware of the 
lack of accreditation and had requested in response to the Director's request for 
evidence (RFE) that the Beneficiary be considered on the basis of his bachelor's degree alone. The 
Petitioner contends that the Beneficiary was approved under the regular H-1B Cap in FY 12 on the 
basis ofthis modification, and therefore, exempt from the H-lB Cap in FY17. 
C. Analysis 
As a preliminary matter, we note that the Petitioner does not contest the Director's conclusion that 
the original2012 H-lB petition did not qualify for the Master's Cap exemption. The Petitioner does 
not assert on appeal that the meets the definition of a United States 
"institution of higher education," in order to qualify the Beneficiary for the Master's Cap exemption 
under section 214(g)( 5)( C) of the, Act. Therefore, we agree with the Director's finding that the 
does not meet the definition of a United States "institution of higher 
education." Accordingly, we conclude the Beneficiary did not earn his degree from an "institution 
of higher education," and he is thus ineligible for the Master's Cap exemption in FY12. 
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Matter of C-C-C-, LLC 
Furthermore, the Petitioner provides no evidence to demonstrate that the Beneficiary was approved 
under the regular H-lB Cap as asserted. Upon review of the FY12 petition, while it appears that the 
Petitioner discussed the Beneficiary's bachelor's degree, as opposed to his master's degree, when 
responding to the Director's RFE, there is insufficient evidence to demonstrate that the Petitioner 
modified the petition to qualify the Beneficiary under the regular H-1B Cap. As mentioned, USCIS 
records indicate that the FY12 petition filed on behalf of the Beneficiary was approved under the 
Master's Cap. We further note that in support of the current petition, the Petitioner emphasizes the 
Beneficiary's master's degree and notes this degree on the Form I-129 Supplement, suggesting that 
it was acknowledging the Beneficiary's previous approval under the Master's Cap. As such, we do 
not find the Petitioner's contention convincing that the Beneficiary was counted under the regular 
H-lB Cap in FY12. 
Since the instant petition was filed after both the FY17 regular and master's caps were exhausted, 
there is no cap number available for the Beneficiary. We note that it was the Petitioner's affirmative 
choice to select the Master's Cap exemption and the regulations generally do 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). 
As a final matter, we agree with the Director that USCIS is not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See Matter of Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 
1988); see also Sussex Eng 'g, Ltd. v. Montgomery, 825 F .2d 1084, 1090 (6th Cir. 1987). Here, the 
Director's determination of cap exemption ineligibility was issued after the final receipt date (April 
7, 20 16) for the regular H -1 B cap. Because the Director determined after the final receipt date that 
the Beneficiary was ineligible for a Master's Cap exemption, the Director properly denied the 
petition without considering eligibility under the general H -1 B Cap. 
II. CONCLUSION 
The Petitioner did not establish that the Beneficiary is eligible for the cap exemption. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fC-C-C-, LLC, ID# 394629 (AAO July 28, 2017) 
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