dismissed H-1B Case: Education

MATTER OF L-F-D-L-N-0-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 6, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an elementary and secondary school, to seeks to temporarily employ the Beneficiary as 
a "French immersion elementary teacher and coordinator" 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). The H-1B 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, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that the petition qualifies for an exemption from the general 
limitation on the number of H-1B visas issued per year (the cap). 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the evidence 
submitted satisfies all evidentiary requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides a nonimmigrant 
classification for aliens who are coming temporarily to the United States to perform services in a 
specialty occupation. In general, H-1B visas are numerically capped by statute. Pursuant to section 
214(g)(1)(A) of the Act, the total number of H-1B visas issued per fiscal year may not exceed 
65,000. 
The numerical limitation does not apply to a nonimmigrant alien 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 higher education (as defined in section 101(a) of the Higher 
Education Act of 1965 (20 U.S.C. lOOl(a))), or a related or affiliated nonprofit entity," or "is 
employed (or has received an offer of employment) at a nonprofit research organizat~on or a 
governmental research organization." Section 214(g)(5)(A-B) of the Act, 8 U.S.C. § 1184(g)(5)(A-
Matter of L-F-D-L-N-0-
B), as modified by the American Competitiveness in the Twenty-first Century Act (AC21), Pub. L. 
No. 106-313 (October 17, 2000). 
For purposes of H-1B cap exemption for an institution of higher education, or a related or affiliated 
nonprofit entity, the H-1B 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) of the Higher Education Act of 
1965, (Pub. Law 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 associatiop., 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 e~tity 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. 
According to USCIS policy, the definition of related or affiliated nonprofit entity that should be 
applied in this instance is that found at 8 C.F.R. § 214.2(h)(19)(iii)(B). 1 Specifically, 8 C.F.R. § 
1 
See USCIS Policy Memorandum HQPRD 70/23.12, Guidance Regarding Eligibility for Exemption from the H-1B Cap 
Based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) 
(June 6, 2006), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/ Static Files Memoranda/ 
Archives%201998-2008/2006/ac21c060606.pdf (Aytes Memo). ("(T]he H-lB regulatio-;s define what is an affiliated 
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Matter of L-F-D-L-N-0-
214.2(h)(19)(iii)(B), which was promulgated in connection with the enactment of American 
Competitiveness and Workforce Improvement Act (ACWIA)/ defines what is a related or affiliated 
nonprofit entity specifically for purposes of the H., 1B 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 the American 
Competitiveness in the Twenty-first Century Act (AC21), Pub. L. No. 106-313 (October 17, 2000), 
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 t~e enactment of AC21: the definition found at 8 C.P.R. § 214.2(h)(19)(iii)(B). 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). 
The Petitioner must,. therefore, establish that the Beneficiary will be employed "at" an entity that 
satisfies the definition at 8 C.P.R. § 214.2(h)(19)(iii)(B) as a related or affiliated nonprofit entity of 
an institution of higher education under section 214(g)(5)(A) of the Act in order for the Beneficiary 
to be exempt from the FY16 H-1B cap. Reducing the provision to its essential elements, we find 
that 8 C.P.R. § 214(h)(19)(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 
nonprofit entity for purposes of the H-1B fee exemption. Adjudicators should apply the same definitions to determine 
whether an entity qualifies as an affiliated nonprofit entities [sic] for purposes of exemption from the H-lB cap"). 
2 Enacted as Title IV of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 
1999, Pub. L. No. 105-277, 112 Stat. 2681, 2681-641. , 
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-1B Visas in Specialty Occupations and as Fashion Models; Labor Certification 
Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 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 ofL-F-D-L-N-0-
II. THE PROFFERED POSITION 
The Petitioner is a public K-12 school that offers French immersion education. The Petitioner seeks· 
to temporarily employ the Beneficiary as a "French immersion elementary teacher and coordinator." 
The petition was filed for an employment period to commence in June 2016. The 2016 fiscal year 
(FY16) extends from October 1, 2015, through September 30, 2016. The instant petition is therefore 
subject to the FY16 H-1B cap, unleSs exempt. Further, on April 7, 2015, U.S. Citizenship and 
Immigration ,Services (USCIS) issued a notice that ·it had received sufficient numbers of H-1B 
petitions to reach the H-1B cap for FY16. The Petitioner filed the instant visa petition on January 4, 
2016. 
The Form I-129 H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement at Page 20, 
Section 3: Numerical Limitation Information, states, inter alia: 
1. Specify the type of H-1B petition you are filing. (select only one box): 
D a. CAP H-1B Bachelor's Degree 
D b. CAP H-1B U.S. Master's Degree or Higher 
D c. CAP H-1B1 Chile/Singapore 
D d. CAP Exempt 
The Petitioner checked box d, indicating that it is "CAP Exempt." Also, in the third question at 
Section 3, to explain why the Petitioner believes that the instant visa petition is exempt, the 
Petitioner checked box b, indicating that the Petitioner is a nonprofit entity related to or affiliated 
with an institution of higher education as defined in section 101(a) of the Higher Education Act of 
1965, 20 U.S.C. 1001(a). The Petitioner claims "a close affiliation with 
The Petitioner did not claim any other exemption from the cap. 
III. ANALYSIS 
The record does not demonstrate that the Petitioner is related to or affiliated with an institution of 
higher education. Turning to the definition of an ''affiliated or related nonprofit entity," the 
" Petitioner acknowledges that it is not connected or associated with an institution of higher education 
through shared ownership or control by same board or federation. The Petitioner does not claim that 
it is operated by an institution of higher education. 
The Petitioner asserts that its relationship with "could be termed as 'related' or 'affiliated' or 
as a 'cooperative' or even as a 'community member."' However, the Petitioner has not established 
that it is attached to an institution of higher education as a . member1 branch, cooperative, or 
subsidiary. In the supplementary information to the interim regulation now found at 8 C.F.R. 
§ 214.2(h)(19)(iii)(B), the former INS stated that it drafted the regulation "drawing on generally 
accept~d definitions" of the terms. See 63 Fed. Reg. 65657, 65658 (Nov. 30, 1998). "Member," 
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(b)(6)
Matter of L-F-D-L-N-0-
"branch," "cooperative," and "subsidiary" all denote, at a minimum, some type of shared ownership 
and/or control, which has not been presented in this matter. See generally Black's Law Dictionary 
(lOth ed. 2014) (defining the terms member, branch, cooperative, and subsidiary). 4 
The record contains a letter from the Petitioner which states that "the agreement between and 
[the Petitioner] creates a program through which can provide its students with various 
learning opportunities, including internships and service learning projects, by placing them at [the 
Petitioner]." It further states that "the agreement sets out the responsibilities of in placing 
students at [the Petitioner] and the responsibilities of [the Petitioner] in providing the educational 
opportunity for the student and managing the activity." However, the Petitioner did not supplement 
the record with documents that describe the terms and conditions of such agreement. A petitioner's 
unsupported statements are of verylimited 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 ofChawathe, 25 I&N Dec. at 376. 
The Petitioner provided a letter from which states that "[the Petitioner] assists by 
allowing its students to 
complete their service learning requirements." However, this letter is not 
sufficient to establish some type of shared ownership and/or control. For example, the letter states 
that "[the Petitioner] benefits from this relationship by getting much-needed assistance during 
classes, lunch periods, and before and after care." The letter also states ' educational 
objectives are furthered because its students have the opportunity to hone their French language 
skills in an authentic setting and by the in-depth, direct exposure to the French educational system 
and teaching methods the students will receive while fulfilling service hours required for 
graduation." The letter states "this close partnership between our two organizations will greatly 
benefit both of our missions." Essentially, the letter contains terms pursuant to which students from 
may fulfill service learning requirements at the Petitioner's facilities through internships and 
various other opportunities, but there is not sufficient evidence of shared ownership and/or control. 
Therefore, the evidence does not demonstrate that the Beneficiary will be employed at an entity that 
satisfies the definition at 8 C.F.R. § 214.2(h)(19)(iii)(B) as a related or affiliated nonprofit entity of 
an institution of higher education under section 214(g)(5)(A) of the Act. 
The Petitioner asserts "while related is not further defined within the Act, affiliation is defined." 
Specifically, the Petitioner asserts that section10l(e)(2)ofthe Act, 8 U.S.C. § 1101(e)(2); must also 
be taken into consideration when evaluating whether the Petitioner is related or affiliated to an 
4 
The Petitioner cited an unpublished 2006 AAO opinion for the proposition that the arrangement between the Petitioner 
and is sufficient to qualify the Petitioner as an entity that is related to or affiliated with While 8 C.F.R. 
§ 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. The Petitioner is permitted, of course, to show that the salient facts of 
the unpublished decisions are similar to those of the instant case and to assert that the reasoning of those cases was sound 
and should be extended. We consider the unpublished decision cited by the Petitioner in that context. However, the 
unpublished decision cited has no value as precedent. 
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(b)(6)
Matter ofL-F-D-L-N-0-
institution of higher education. Specifically, the Petitioner observes that section 101(e)(2) provides 
"the giving, loaning, or promising of support or of money or any other thing of value for any purpose 
to any organization shall be presumed to constitution affiliation therewith .... " 
\ 
Set out in full, section 101( e) of the Act states: 
For the purposes of this Act-
(1) The giving, loaning, or promising of support or of money or any other thing of 
value to be used for advocating any doctrine shall constitute the advocating of 
such doctrine; but nothing in this paragraph shall be construed as an exclusive 
definition of advocating. 
(2) The giving, loaning, or promising of support or of money or any other thing of 
value for any purpose to any organization shall be presumed to constitute 
affiliation therewith; but nothing in this paragraph shall be construed as an 
exclusive definition of affiliation. 
~ 
(3) Advocating the economic, international, and governmental doctrines of world 
communism means advocating the establishment of a totalitarian Communist 
dictatorship in any or all of the countries of the world through the medium of 
an internationally coordinated Communist movement. 
Read in context, section 101(e)(2) of the Act plainly refers to "affiliation" in the sense of a person 
being affiliated with the Communist movement. We do not find this definition of "affiliation" 
applicable for purposes of determining whether a beneficiary is exempt from the H-1B cap. 
The Petitioner also asserts that "8 C.P.R. § 214.2(h)(19)(iii)(B) does not correlate to section 
214(g)(5)(A) of the Act since it relates to ACWIA fee." But as discussed above, by including the 
phrase "related or affiliated nonprofit entity" in the language of the American Competitiveness in the 
Twenty-first Century Act (AC21), Pub. L. No. 106-313 (October 17, 2000), 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.P.R. § 214.2(h)(19)(iii)(B). Again, 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. at 184-85. 
The Petitioner also cited an unpublished 2006 AAO opinion for the proposition that the arrangement 
between the Petitioner and is sufficient to qualify the Petitioner as an entity that is related to 
or affiliated with While 8 C.P.R. § 103.3(c) provides that AAO precedent decisions are 
binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. The Petitioner is permitted, of course, to show that the salient facts of the 
unpublished decisions are similar to those of the instant case and to assert that the reasoning of those 
6 
(b)(6)
Matter of L-F-D-L-N-0-
cases was sound and should be extended. We consider the unpublished decision cited by the 
Petitioner in that context. However, the unpublished decision cited has no value as precedent. 
Further, on appeal, the Petitioner refers to an internal USCIS memorandum to assert that the 
Beneficiary is providing direct contributions toward the educational objectives of the United States, 
and thus should be exempt from the cap. 5 The letter from describes the duties of the 
proffered position which include duties at both the Petitioner's facility and However, 
according to the memo, the locus actus, or place of performance is paramount in determining 
whether a petitioner qualifies for an exemption from the H-lB cap as an institution of higher 
education under section 214(g)(5)(A) of the Act. Based on the evidence presented in this matter, 
while the Beneficiary may perform some duties at for example, "leading instructional 
meetings each semester," there is not sufficient evidence in the record to establish that the 
Beneficiary will be employed on site at majority of the time, and does not qualify for the 
third-party employer exception in the memo. 
Upon review, the Petitioner has not established that it is exempt from the FY16 H-1B cap pursuant 
to section 214(g)(5) of the Act. 
IV. BENEFICIARY'S QUALIFICATIONS 
As the record does not demonstrate that the Petitioner is exempt from the cap, we need not fully 
address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings.6 
Specifically, the combined evaluations of the Beneficiary's education and work experience 
submitted by the Petitioner are not sufficient to establish that the Beneficiary possesses the 
equivalent of a U.S. bachelor's degree in any specific specialty. 
While the claimed equivalency is based in part on experience, the record does not/establish (1) that 
the evaluators have authority to grant college-level credit for training and/or experience in the 
specialty at an accredited college or university with a program for granting such credit, and (2) that 
the Beneficiary's expertise in the specialty is recognized through progressively responsible positions 
directly related to the specialty. Absent such a showing, the Petitioner has not demonstrated that the 
Beneficiary is qualified for a specialty occupation based on her combined education and experience. 
See 8 C.F.R. §§ 214.2(h)(4)(iii)(C)(4) and (D)(J). 
The Petitioner has not demonstrated that the Beneficiary is qualified to work m a specialty 
occupation position. 
5 See Memorandum from Michael Aytes. 
6 In reviewing a matter de novo, we may identify additional issues not addressed below in the Director's decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on 
a ground not identified by the Service Center."). 
7 
Matter of L-F-D-L-N-0-
V. CONCLUSION 
The record does not demonstrate that the Petitioner is related to or affiliated with an institution of 
higher education. The burden is on the Petitioner to show eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 
2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-F-D-L-N-0-, ID# 10570 (AAO Dec. 6, 2016) 
8