dismissed H-1B Case: Education

MATTER OF P-I-M-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 14, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
Petitioner, a school, seeks to temporarily employ the Beneficiary as an elementary school teacher 
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 Beneficiary is entitled to an exemption from the general 
limit on the number ofH-1B visas issued per year (the cap). 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
finding that the Petitioner had not established eligibility for the exemption sought. 
Upon de novo review, we will dismiss the appeal. 
I. H-1B CAP 
A. 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 petition was filed for an employment period to commence in September 2015. The 2015 fiscal 
year (FY15) extends from October 1, 2014, through September 30, 2015. The instant petition is 
therefore subject to the 2015 H-1B cap, unless exempt. Further, on April 7, 2014, 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 FY15. The Petitioner filed the instant visa petition on September 
Matter of P-1-M-S-
10, 2015. Unless this visa petition is exempt from the cap, it cannot be approved. At issue in this 
matter, therefore, is whether the Beneficiary qualifies for an exemption from the FY15 H-1B cap 
pursuant to ~ection 214(g)(5)(A) of the Act, 8 U.S.C. § 1184(g)(5)(A). 
In general, section 214(g)(5) ofthe Act provides that: 
The numerical limitations contained in paragraph (l)(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
101(a)(15)(H)(i)(b) who-
(A) . 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. 1001(a))), 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. 1001(a)), until the number of aliens who are exempted 
from such numerical limitation during such year exceeds 20,000. 
The regulation at 8 C.F.R. § 214.2(h)(8)(ii)(B) reads, in pertinent part, as follows: 
When calculating the numerical limitations or the number of exemptions under 
section 214(g)(5)(C) of the Act for a given fiscal year, USCIS will make numbers 
available to petitions in the order in which the petitions are filed . . . . Petitions 
subject to a numerical limitation not randomly selected or that were received after the 
final receipt date will be rejected. Petitions filed on behalf of aliens otherwise 
eligible for the exemption under section 214(g)(5)(C) of the Act not randomly 
selected or that were received after the final receipt date will be rejected if the 
numerical limitation under 214(g)(1) of the Act has been reached for that fiscal year. 
Petitions indicating that they are exempt from the numerical limitation but that are 
determined by users after the final receipt date to be subject to the numerical limit 
will be denied and filing fees will not be returned or refunded. 
B. Analysis 
The Petitioner filed the H-1B petition on September 10, 2015. The Form I-129 H-1B Data 
Collection and Filing Fee Supplement (H-IB Supplement), at Section 3, Numerical Limitation 
Information, reads as follows: 
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Matter of P-1-M-S-
1. Specify the type ofH-lB petition you are filing. (select only one box): 
D a. CAP H-IB Bachelor's Degree 
D b. CAP H-IB U.S. Master's Degree or Higher 
D c. CAP H-IBI Chile/Singapore 
D d. CAP Exempt 
The Petitioner checked "d," indicating the Petitioner's position that the instant petition is exempt 
from the cap. 
The Petitioner does not claim and does not provide evidence that the Petitioner in this matter is a 
nonprofit research organization or a governmental research organization. Further, the record 
contains no indication that the Beneficiary has earned a master's or higher degree from a United 
States institution of higher education. Further still, the Petitioner does not claim that the Petitioner 
is, itself, an institution of higher education. In fact, on the H -1 B petition, the Petitioner stated that it 
is not such an entity and that the Beneficiary does not have such a degree. We find insufficient 
evidence that the instant visa petition qualifies for exemption from the cap pursuant to any of the 
above tests. 
The only remaining test of whether this visa petition is subject to the cap is whether the Petitioner is 
a nonprofit organization or entity related to or affiliated with an institution of higher education. The 
Petitioner has demonstrated that it is a nonprofit organization or entity. The issue at hand is whether 
the Petitioner is "related or affiliated" with an institution of higher education. 
With the visa petition, in response to the Director's request for evidence, and on appeal, the 
Petitioner provided briefs addressing whether the Petitioner is related to or affiliated with an 
institution of higher education. The crux of the Petitioner's position is that the Petitioner is affiliated 
with St. Joseph's University (the University) based on a contract between one of the Petitioner's 
managed schools and the University. In support of that contention, the Petitioner points to section 
101(e)(2) of the Act, 8 U.S.C. § 1101(e)(2), which, as the Petitioner observes, states that providing 
anything of value for any purpose to any organization constitutes an "affiliation." Set out in full, 
section IOI(e) ofthe 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 
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Matter of P-1-M-S-
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. 
However, 8 C.F.R. § 214.2(h)(19)(iii)(B), which was promulgated in connection with the enactment 
·of the American Competitiveness and Workforce Improvement Act of 1998, defines what is a 
related or affiliated nonprofit entity specifically for purposes of the H-IB 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)(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). 
Reducing the provision to its essential elements, we find that 8 C.F.R. § 214.2(h)(19)(iii)(B) allows a 
petitioner to demonstrate that it is an affiliated or related nonprofit entity if it establishes that it is 
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 
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(b)(6)
Matter of P-1-M-S-
(3) Attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary.1 
The contract between the Petitioner and the University is, at its essence, an agreement to terms 
pursuant to which the University will recruit and select teaching and administrative fellows to work 
at the petitioning school under the 
program. The contract, entitled " School Agreement 2015-2017," states that 
"[t]his Agreement only pertains to Teaching and Administrative Fellows entering the program in 
2015, one for two years." 
The contract between the Petitioner and the University is very limited in scope. It contains terms 
pursuant to which the University's students would be employed by the Petitioner (and other closely­
related matters) under a two-year fellowship program beginning in 2015. The evidence in the record 
is insufficient to show that the Petitioner and the University are under shared ownership or control. 
The evidence is insufficient to show that the University operates the Petitioner. 
The remaining prong pursuant to which the Petitioner could show that the instant visa petition is 
exempt from the cap is to demonstrate that the Petitioner is attached to an institution of higher 
education as a member, branch, cooperative, or subsidiary. All four of these terms indicate 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 at 182, 336, 1442 (7th ed. 1999) (defining the terms 
branch, cooperative, and subsidiary); see also Webster's New College Dictionary at 699 (3rd ed. 
2008) (defining the term member). 
Here, the Petitioner asserts that it 
qualifies as a "cooperative" of the University through the 
program. The Petitioner asserts that "[u]nder 
Pennsylvania law, a cooperative may take the form of 
an 'unincorporated non-profit association.'" The Petitioner further states that " is a non­
profit association consisting of [the University] and [the Petitioner] Partner Schools as members. 
They have a written agreement, which provides for shared control of certain aspects of the 
'cooperative' as set forth above." On appeal, the Petitioner advances the position that "[i]t is hard to 
imagine any reading of the word 'cooperative' that would not include an intensive program between 
two entities, bound by contract, sharing staffing, financial, and educational resources in pursuit of an 
explicit common goal." 
We find the Petitioner's assertions unpersuasive; however, as it has not cited any legal authority to 
support its assertion that, under Pennsylvania law, an unincorporated non-profit association qualifies 
1 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)(l9)(iii)(B). The Department of Labor explained in the supplementary information to its 
ACWIA regulations that it consulted with the former INS 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. 80,110, 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 of P-1-M-S-
as a "cooperative." Nor has the Petitioner cited legal authority to support its loose definition of a 
"cooperative" as a program between two entities with some common resources and goals.2 "[G]oing 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings." Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Moreover, the Petitioner has not sufficiently supported its assertion that it and the University have 
"shared control" of the program. The terms of the contract indicate that the Petitioner has 
separate and distinct responsibilities, as does the University. There are no terms in the contract 
indicating that the Petitioner may limit the University's authority in any way, or vice versa. Without 
more, we are not persuaded that the contract's provisions for cooperation between the Petitioner and 
the University amount to shared control or ownership. The Petitioner has not demonstrated that it is 
related to or affiliated with an institution of higher learning. 
II. PAYMENT OF REQUIRED WAGE 
Section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), states that the Petitioner must offer 
wages that are at least "the actual wage level paid by the employer to all other individuals with 
similar experience and qualifications for the specific employment in question" or "the prevailing 
wage level for the occupational classification in 
the area of employment, whichever is greater." The 
regulation at 20 C.F.R. § 655.731(c)(l) similarly states that "the required wage must be paid to the 
employee, cash in 
hand, free and clear, when due." See generally 20 C.F.R. § 655.731 (establishing 
the wage requirement for labor condition application purposes). 
On the Form 1-129, Petition for Nonimmigrant Worker, and the LCA, the Petitioner attested that it 
would pay the Beneficiary a wage of $32,000 per year. The instructions to the Form 1-129 specify 
that the salary or wages must be expressed in an annual full-time amount and do not include non­
cash compensation or benefits.3 . 
The Petitioner declared that it would comply with the statements as set forth in the cover pages of 
the LCA and the DOL regulations at 20 C.F.R. § 655, Subparts Hand I, when it filed and signed the 
LCA. In addition, the Petitioner signed the Form 1-129, H Classification Supplement, thereby 
certifying under penalty of perJury that it agrees to and will abide by the terms of the LCA for the 
duration of the Beneficiary's authorized period of stay for H-1B employment. The Petitioner also 
signed the Form I-129certifying under the penalty of perjury that the information supplied to USCIS 
on the petition and supporting evidence was true and correct. 
2 The Petitioner refers to two unpublished AAO decisions. One decision, dated August 9, 2010, found that a petitioner 
qualified as a related or affiliated entity through shared control by the same board pursuant to 8 C.F.R. 
§ 214.2(h)(l9)(iii)(B)(J). The other, dated October 5, 2010, found that the petitioner did not qualify as a related or 
affiliated entity under any prong at 8 C.F.R. § 214.2(h)(19)(iii)(B). In any event, we observe that unpublished AAO 
decisions are not binding on USCIS employees in the administration of the Act. Compare 8 C.F.R. § 1 03.3(c) 
(precedent AAO decisions are binding). 
3 The Petitioner reported that the prevailing wage is $30,600 per year. 
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(b)(6)
Matter of P-1-M-S-
However, under the terms of the contract, the Petitioner "shall provide each 
Teaching/Administrative Fellow [i.e., the Beneficiary] with a living stipend . ~ . in the amount of 
$1,000 per month (before taxes), for a total annual stipend (before taxes) of $12,000." The 
Petitioner confirmed in its RFE response that it "is required to provide [the Beneficiary] with a living 
stipend in 
the amount of $1,000 per month (before taxes), for a total annual stipend (before taxes) of 
$12,000 [per year]." The Petitioner stated: "The combination of the living stipend to the 
Fellow and the fee to [the University] that [the Petitioner] is required to pay for its participation in 
the program amounts to $23,000, well below the normal compensation package [the 
Petitioner] provides to its elementary school teachers." 4 The offered stipend of $12,000 per year, 
and even the total program cost of $23,000 per year, is far less than the prevailing and proffered 
wages attested to on the LCA. 
The Petitioner's employment agreement with the Beneficiary states that she would be paid a salary 
of "$32,000 annually, $1,230.77 bi-weekly." Nevertheless, the Petitioner has not offered an 
explanation reconciling its employment agreement with its contractual obligations under the 
program and other statements made in support of this petition. "[I]t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). Any attempt to explain or r~conCile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. !d. at 
591-92. 
In light of the above, the record does not sufficiently demonstrate that the Petitioner would pay the 
Beneficiary the required wage attested to on the LCA. 5 The record also does not sufficiently 
demonstrate that the Petitioner would satisfy the wage requirement at section 212(n)(l)(A) of the 
Act, i.e., that the actual wage paid to the Beneficiary would be equal to or greater than "the actual 
wage level paid by the employer to all other individuals with similar 
experience and qualifications 
for the specific employment in question" or "the prevailing wage level for the occupational 
classification in the area of employment, whichever is greater." 
III. CONCLUSION 
The record does not demonstrate that: (1) the Petitioner is related to or affiliated with an institution 
of higher learning and, thus, that this petition is exempt from the numerical cap; (2) the Petitioner 
would pay the Beneficiary the required wage in accordance with the certified LCA. 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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. · 
4 The Petitioner explained that, under this agreement, it "is required to pay the University a fee in the amount of $13,000 
per Fellow per year." The Petitioner also explained that it is prohibited 'from providing the Beneficiary with health 
insurance. 
5 The record does not demonstrate that the difference between the Beneficiary's stipend and the required wage, as 
attested to on the LCA, can be accounted for by "authorized deductions" as set forth in 20 C.F.R. § 655.73l(c)(9). 
Matt(!r of P-1-M-S-
ORDER: The appeal is dismissed. 
Cite as Matter of P-I·M-S-, ID# 16977 (AAO July 14, 2016) 
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