dismissed H-1B Case: Dentistry

MATTER OF C-H-A-E-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 16, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a medical clinic, seeks to temporarily employ the Beneficiary as a "dentist" under the 
H-IB 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)(l5)(H)(i)(b). The H-IB program allows a U.S. 
employer to temporarily employ a qualified individual 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, California Service Center, denied the petition. The Director concluded that the 
evidence of record does not establish that the Beneficiary qualifies for an exemption from the Fiscal 
Year 2016 (FY16) H-IB cap based on the Petitioner's relation to or affiliation with an institution of 
higher education. 1 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief asserting that the 
Director's decision was erroneous and that the Director trivialized the Petitioner's affiliation 
agreement. 
Upon de novo review, we will dismiss the appeal. 
I. H-IB 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, 8 U.S.C. § 1184(g)(l)(A), the total number ofH-lB visas issued per fiscal year may not exceed 
65,000. 
1 U.S. Citizenship and Immigration Services (USCIS) announced that the H-1 8 cap for FY 16 was reached on April 7, 
2015. 
Matter ofC-H-A-E-S- Inc. 
Section 214(g)(5)(A) of the Act, as modified by the American Competitiveness in the Twenty-First 
Century Act of2000 (AC21), Pub .. L. No. 106-313 (Oct. 17, 2000), states, in relevant part, that the 
H -1 B cap shall not apply to any nonimmigrant individual issued a visa or otherwise provided status 
under section 101(a)(15)(H)(i)(b) of the Act who "is employed (or has received an offer of 
employment) at an institution of high~r education (as defined in section 101(a) of the Higher 
Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity .... " 
For purposes of H -1 B cap exemption for an institution of higher education, or a related or affiliated 
nonprofit entity, the H-1 B regulations adopt the definition of institution of higher education set forth 
in section 101(a) of the Higher Education Act of 1965. Section 101(a) ofthe Higher EducationAct 
of 1965, Pub. L. No. 89-329,20 U.S.C. § 1001(a), defines an institution of higher education 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; 
(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; 
( 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 satisfactory assurance that the institution will meet the 
accreditation standards of such an agency or association within a reasonable 
time. 
Pursuant to 8 C.F.R. § 214.2(h)(19)(iv), a nonprofit organization or entity is: 
(A) Defined as a tax exempt organization under the Internal Revenue Code of 
1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) or (c)(6), 
and 
(B) Has been approved as a tax exempt organization for research or educational 
purposes by the Internal Revenue Service. 
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Matter ofC-H-A-E-S- Inc. 
Title 8 C.F.R. § 214.2(h)(l9)(iii)(B), which was promulgated in connection with the enactment of 
the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), defines what is 
a related or affiliated nonprofit entity specifically for purposes of the H -1 B fee exemption 
prOVISIOns: 
An affiliated or related nonprofit entity. A nonprofit entity (including but not limited 
to hospitals and medical or research institutions) that is connected or associated with 
an institution of higher education, through shared ownership or control by the same 
board or federation operated by an institution of higher education, or attached to an 
institution of higher education as a member, branch, cooperative, or subsidiary. 
By including the phrase "related or affiliated nonprofit entity" in the language of AC21 without 
providing further definition or explanation, Congress likely intended for this phrase to be interpreted 
consistently with the only relevant definition of the phrase that existed in the law at the time of the 
enactment of AC21: the definition found at 8 C.F.R. § 214.2(h)(l9)(iii)(B). 2 It is presumed that 
Congress is aware of USCIS regulations at the time it passes a law. See Goodyear Atomic Corp. v. 
Miller, 486 U.S. 174, 184-85 (1988). 
Reducing the provision to its essential elements, we find that 8 C.F .R. § 214.2(h)(l9)(iii)(B) allows a 
petitioner to demonstrate that it is an affiliated or related nonprofit entity if it establishes one or more 
of the following: 
(1) Connected or associated with an institution of higher education, through 
shared ownership or control by the same board or federation; 
(2) Operated by an institution of higher education; or 
(3) Attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary.3 
2 See USCIS Policy Memorandum PM-602-0037, Additional Guidance to the Field on Giving Deference to Prior 
Determinations of H-1 B Cap Exemption Based on Affiliation (Apr. 28, 20 II), 
https:l/www.uscis.gov/sites/default/files/USCIS/Outreach/Feedback%200pportunities/Interim%20Guidance%20for%20 
Comment/Additional-guidance-deference-hI B-cap-PM-602-0037.pdf. See also Memorandum from Michael Aytes, 
Associate Director for Domestic Operations, USCIS, HQPRD 70/23.12, Guidance Regarding Eligibilityfor Exemption 
from the H-/B Cap Based on §103 ofthe American Competitiveness in the Twenty-First Century Act of2000 (AC21) 
(Public Law I 06-313) (June 6, 2006). 
3 This reading is consistent with the Department of Labor's regulation at 20 C.F.R. § 656.40(e)(ii), which is essentially 
identical to 8 C.F.R. § 214.2(h)( 19)(iii)(B). The Department of Labor explained in the supplementary information to its 
ACWIA regulations that it consulted with the former Immigration and Naturalization Service on the issue, supporting the 
conclusion that the definitions were intended to be identical. See Labor Condition Applications and Requirements for 
Employers Using Nonimmigrants on H-1 B Visas in Specialty Occupations and as Fashion Models; Labor Certification 
Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80, II 0, 80,110-11 (proposed Dec. 20, 
2000) (to be codified at 20 C.F.R. pts. 655-56). 
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(b)(6)
Matter ofC-H-A-E-S- Inc . . 
B. Factual Background 
At "Section 2. Fee Exemption and/or Determination" of the Form I-129, H-IB and H-IBI Data 
Collection and Filing Fee Exemption Supplement, the Petitioner checked the box for "Yes" in 
response to the question, "Are you a nonprofit organization or entity related to or affiliated with an 
institution of higher education, as defined in Section 1 Ol(a)ofthe Higher Education Act of 1965, 20 
U.S.C. IOOI(a)?" At "Section 3. Numerical Limitation Information" of the same supplement , the 
Petitioner checked the box in response to the statement, "The [P]etitioner is a nonprofit entity related 
to or affiliated with an institution of higher education as defined in section lOl(a) of the Higher 
Education Act of 1965,20 U.S.C. IOOI(a)." 
In support of its petition, the Petitioner submitted a letter claiming that it is a cooperative of 
The Petitioner also submitted copies copy of its 
"affiliation" agreement with as well as two letters from to the Petitioner, in support of the 
claimed affiliation between the parties. 
In response to the Director's request for evidence (RFE), the Petitioner submitted additional 
documentation, including, inter alia, letters from president and clinical coordinator of its 
school of medicine, a copy of the Petitioner's former lease of premises on campus, copies of 
handbook, annual report, and a case study referencing the Petitioner's partnership with 
C. Analysis 
We will first consider whether the Petitioner has established that it is a related or affiliated nonprofit 
entity pursuant to the first prong of 8 C.P.R. § 214.2(h)(19)(iii)(B): shared ownership or control by 
the same board or federation. · 
Upon review, the record does not establish that the Petitioner and are owned or controlled by the 
same boards or federations. We interpret the terms "board" and "federation" as referring specifically 
to educational bodies such as a board of education or a board of regents. Although the Petitioner 
submits a copy of annual report, which demonstrates that the Petitioner's president serves on 
the advisory board for the Petitioner 
does not expressly claim that it shares the same board or federation with this institution. 
Consequently, we find that the Petitioner has not met the 
first prong of 8 C.P.R. 
§ 214.2(h)(19)(iii)(B). 
Second, we consider whether the Petitioner has established that it is a related or affiliated non-profit 
entity pursuant to the second prong of 8 C.P.R. § 214.2(h)(19)(iii)(B): operation by an institution of 
higher education. The evidence in the record does not demonstrate that an institution of higher 
education operates the Petitioner, which is self-described as a "medical clinic" incorporated in the 
State of Illinois. Nor does the Petitioner claim that it is operated by an institution of higher 
· education. Accordingly , we fiJ!.d that the Petitioner has not met the second prong of 8 C.P.R. 
§ 214.2(h)(19)(iii)(B). 
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(b)(6)
Matter ofC-H-A-E-S- Inc. 
Third, we consider whether the Petitioner has established that it is a related or affiliated nonprofit 
entity pursuant to the third prong of 8 C.F.R. § 214.2(h)(19)(iii)(B): attached to an institution of 
higher education as a member, branch, cooperative, or subsidiary. In support of the petition, the 
Petitioner expressly claimed that it qualifies as a "cooperative." 
In the supplementary information to the interim regulation now found at 8 C.F.R. 
§ 214.2(h)( 19)(iii)(B); the former Immigration and Naturalization Service stated that it drafted the 
regulation "drawing on generally accepted definitions" of the terms. 63 Fed. Reg. 65657, 65658 
(Nov. 30, 1998). All four of these terms indicate at a bare minimum some type of shared ownership 
and/or control, which has not been presented in this matter. See generally Black's Law Dictionary at 
212, 384, 1565 (9th Ed. 2009) (defining the terms branch, cooperative, and ·subsidiary); see also 
Webster's New College Dictionary at 699 (3rd Ed. 2008) (defining the term member). 
Although the Petitioner claims that it qualifies as a "cooperative," the Petitioner has not further 
explained why it qualifies as such. That is, other than presenting copies of its "affiliation" 
agreement with the Petitioner has not identified and explained which provisions within this 
agreement establishes some type of shared ownership and/or control. Instead, we find that this 
agreement is very limited in scope. Essentially , it contains terms pursuant to which students from 
these educational institutions may gain clinical experience at the Petitioner's facilities through 
internships. The Petitioner provides the students with access to its facilities and clinical staff 
supervision, but maintains control, authority, and responsibility for the educational programs 
which are the subject of the "affiliation" agreement. Specifically, the agreement contains provisions 
stating that will "assume responsibility for the administration of the internship, including but not 
limited to, curriculum development, grading, requirements for matriculation, credits, scheduling, and 
clinical hours" and that it will "provide [Petitioner] clinical personnel with the overall objectives of 
the internship and provide the appropriate educational objectives and documents for clinical 
experiences." 
The Petitioner 
submitted numerous letters from stating that it has a "long standing collaborative 
relationship" with the Petitioner, and that it recognizes the Petitioner as a "cooperative partner with 
respect to academic, clinical, and regional support programs .... " However, the Petitioner has not 
further explained the nature of its "cooperative partnership " with nor has the Petitioner 
submitted documentation demonstrating that a formal partnership or cooperative exists with this 
entity, and if so, the terms of that formal partnership or cooperative. Moreover, we note that the 
affiliation agreement contains a provision that provides: " and [the Petitioner] shall be 
considered independent contractors to one another. Nothing in this Agreement shall establish or 
create a relationship of partnership, joint venture, employment, franchise or association between 
and [the Petitioner], nor between their respective students, faculty, staff and/or employees." A 
. petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof. See Matter of Soffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter of 
Chawathe , 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter ofChawath e, 25 I&N Dec. at 376. 
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Matter ofC-H-A-E-S- Inc. 
The record does not demonstrate that the Petitioner is attached to an institution of higher education 
as a "cooperative," "member," "branch," or "subsidiary" in a manner consistent with the generally 
accepted definitions of those terms, all of which require some degree of shared ownership and/or 
control. Accordingly, the Petitioner has not demonstrated that it is exempt from the H-1 B cap 
pursuant to se~tion 214(g)( 5) of the Act. 
II. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC·H-A-E-S- Inc., ID# 195447 (AAO Nov. 16, 2016) 
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