dismissed H-1B Case: Education

MATTER OF F-H-P-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 23, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a public school system, seeks to temporarily employ the ·Beneficiary as an 
"Elementary Chinese Immersion Classroom Teacher" under the H-1B nonimmigrant classification. 
See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, California Service Center, denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
I. ISSUE 
The issue before us is whether the Beneficiary qualifies for an exemption from the Fiscal Year 2015 
(FY15) H-1B cap based on the Petitioner's relation to or affiliation with an institution of higher 
education. 1 
II. H-1B CAP EXEMPTION 
A. Legal Framework 
In general, H-1B 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 of H-1B visas issued per fiscal year may not exceed 
65,000. 
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-1B 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 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 .... " 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dor v. INS, 891 F.2d 997, 
1002 n.9 (2d Cir. 1989). 
Matter of F-H-P-S-
For purposes of H -1 B cap exemption for an institution of higher education, or a related or affiliated 
nonprofit entity, the H-1B regulations adopt the definition of institution ofhigher 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. 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.P.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. 
Title 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 
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Matter of F-H-P-S-
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 users 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.2 
B. Factual Background 
At "Section 2. Fee Exemption and/or Determination" of the Form I-129, H-1B and H-1B1 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 101 (a) of the Higher Education Act of 1965, 20 
U.S.C. lOOl(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 101(a) of the Higher 
Education Act of 1965,20 U.S.C. 1001(a)." 
2 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 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 8 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 F-H-P-S-
In the letter of support dated February 16,2015, the Petitioner stated that it is: 
[A] nonprofit entity, ... affiliated with two higher education institutions to 
provide students with instructional education on site at schools in the district: 
and [The 
Petitioner] and the universities have a jointly-shared controlling stake in the Chinese 
Immersion program that is the subject ofthe affiliations. [The Petitioner] works with 
and to jointly furnish the goals and objectives of the affiliation 
agreement, which are to provide teaching experience to university students in our 
school district. ... 
Regarding the proffered position, the Petitioner indicated that the Beneficiary ·"will create a flexible 
elementary grade Chinese Immersion program and class environment favorable to learning and 
personal growth." 
The Beneficiary was originally employed to teach Mandarin Chinese language instruction for the 
Petitioner through curricular practical training while she held F -1 status at the at 
This work was performed pursuant to an Independent Contractor AgreeJJlent between 
and the Petitioner dated July 24, 2014. The agreement states the following in part: 
WHEREAS, [the Petitioner] and desire to enter into an independent 
contracting relationship whereby will be engaged to provide the instructional 
consultant services as set forth in this Agreement; ... 
1. Engagement. [The Petitioner] hereby engages and accepts such 
engagement to serve as an independent contractor to have provide the 
instructional consultant services as set forth in this Agreement for the 
consideration, and upon the terms and conditions set forth in this Agreement. 
2. Relationship. The relationship between "[the Petitioner] and 
of independent contracting parties .... 
shall be that 
The Petitioner also submitted a Memorandum of Agreement between the Petitioner, and 
another entity dated August 5, 2013, establishing a J-1 exchange visitor program for the 
at to provide foreign exchange teachers to the Petitioner. In a letter dated April 7, 
2015, Associate Provost and Director of the 
states as follows: 
Established on July 7, 2009, the 
and 
funded by 
was created through a partnership between 
.... The 
and 
and part of 
4 
is jointly 
(the executive body of the 
(b)(6)
Matter of F-H-P-S-
that manages a collaborative effort between and 
[The Petitioner] is a cooperative partner member attached to 
and our 
Further, the Petitioner submitted a General Collaboration Agreement between and the 
Petitioner dated June 12, 2012. This document is signed by the Petitioner, but not by and 
again, as in the Memorandum of Agreement, discusses the use of a J-1 exchange visitor program for 
teachers. Further, it states: 
. . .[the Petitioner] will retain all right to supervision of instruction, 
maintenance of classroom authority, student evaluation, and grades for classroom 
instruction provided as part of [the Petitioner]'s curriculum. Similarly, for courses 
and curricular content offered to students through will retain all 
right so supervision of instruction, maintenance of classroom authority, student 
evaluation, and grades. 
Should any activities be defined where supervision of instruction, maintenance of 
classroom authority, student evaluation, and grades may be shared between the 
Parties as permitted by applicable law, the Parties agree to work together toward the 
goal of keeping the best interests of the students in mind in resolving the issues in 
question. 
In addition, the Petitioner submitted a letter dated April 14, 2015, from 
Petitioner as a "strategic partner member .... " 
C. Analysis 
that describes the 
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.F.R. § 214.2(h)(19)(iii)(B): shared ownership or control by 
the same board or federation. We note that it cannot be found that the Petitioner meets the definition 
of related or affiliated nonprofit entity simply because the Petitioner, and are all public 
educational institutions in the State of Michigan governed and/or regulated by the State of Michigan 
Department of Education. We interpret the terms "board" and "federation" as referring specifically 
to educational bodies · such as a board of education or a board of regents. Upon review, the record 
does not establish that the Petitioner, and are owned or controlled by the same boards 
or federations. Accepting an argument concerning some type of shared ownership or control 
through the government of the would allow virtually any state government agency 
in Michigan, or in any other state for that matter, to claim exemption from the H-lB cap regardless 
of whether the agency had any connection to higher education, a result that would be inconsistent 
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(b)(6)
Matter of F-H-P-S-
with the intent of AC21. This overly expansive interpretation would undermine the clear 
congressional intent to grant an exemption for institutions of higher education.3 Further, the 
Petitioner did not submit documentation to establish that public institution of higher education and 
public primary and secondary schools are owned or controlled by the same boards or federation in 
the State of Michigan. Consequently, we find that the Petitioner has not met the first prong of 
8 C.F.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.F.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, a public school district, within the common meaning of this term. 
The independent contractor agreement between the Petitioner and previously indicated that 
the Petitioner and entered into "an independent contracting relationship" and that "the 
relationship between [the Petitioner] and shall be that of independent contracting parties." 
Further, as noted the General Collaboration agreement between the Petitioner and stated that 
"the [Petitioner] will retain all right to supervision of instruction, maintenance of classroom 
authority, student evaluation, and grades for classroom instruction provided as part of [the 
Petitioner's] curriculum." The agreement further stated that "for courses and curricular content 
offered to students through will retain all right to supervision of instruction, 
maintenance of classroom authority, student evaluation, and grades. 
As depicted in the record, the relationship that exists between the Petitioner and the institutions of 
higher education is one between separately controlled and operated entities. While they may work 
together on certain activities that may be shared, it cannot be inferred from associations of such a 
limited scope that the Petitioner is being operated by either of the institutions of higher education 
named herein. Accordingly, we find that the Petitioner has not met the second prong of 8 C;F.R. § 
214.2(h)(19)(iii)(B). 
Third and finally, 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 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 accepted defmitions" of 
the terms. 63 Fed. Reg. 65657, 65658 (Nov. 30, 1998). It is evident from the foregoing discussion 
of the evidence that the Petitioner, a public school district, is not attached to an institution of higher 
education in a manner consistent with these terms. There is no probative evidence submitted that the 
petitioner is a member, branch, cooperative, or subsidiary of or All four of these terms 
3 See generally 146 Cong. Rec. S9643-05 (October 3, 2000) (Statements of Senators Harry Reid, John McCain, Spencer 
Abraham, Sam Brownback, Kent Conrad, Patrick Leahy and Orrin Hatch); 146 Cong. Rec. S9449-01 (September 28, 
2000) (Statements of Senator Hatch, Abraham and Edward Kennedy); 146 Cong. Rec. S7822-01 (July 27, 2000) 
(Statement of Senator John Warner) ; 146 Cong. Rec. S538-05 (February 9, 2000) (Statements of Senators Hatch, 
Abraham and Phil Gramm). 
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(b)(6)
Matter of F-H-P-S-
indicate at a bare minimum some type of shared ownership and/or control, which has not been 
presented in this matter. See generally Black'sLaw Dictionary at 182, 336, 1442 (7th Ed. 1999) 
(defining the terms branch, cooperative, and subsidiary); see also Webster's New College Dictionary 
at699 (3rd Ed. 2008) (defining the term member). 
Both and refer to the Petitioner as a "partner member." However, it appears the 
purpose of the collaboration between the Petitioner and these two entities is to provide on-the-job 
training experience for future teachers. Specifically, this is evident from establishment of a 
J -1 exchange program for teachers and the Beneficiary's work for through F -1 curricular 
practical training, as well as the Petitioner's emphasis on the need for Chinese speaking teachers in 
its language immersion program. While a contract between two separate entities is indicative of 
some sort of collaborative effort, the general collaboration between the Petitioner and and 
referenced in the agreements does not establish that the entities share ownership and/or 
control with the Petitioner. 
On appeal, the Petitioner refers to a non-precedent decision with "strikingly similar facts" where we 
withdrew a Director's decision to deny "H-1B cap exemption to a Texas public school system for a 
[bilingual] teacher." However, while 8 C.F.R. § 103.3(c) provides that our precedent decisions are 
binding on all USCIS employees in the administration of the Act, non-precedent decisions are not 
similarly binding.4 
Further, the Petitioner also refers to an internal USCIS memorandum to assert that the intent of 
AC21 "is to exempt employees from the H-1B cap that 'directly and predominantly furthers the 
essential purposes' of institution of higher education" and that the Petitioner plays "critical part of 
the university students' professional development."5 However, we note that according to the memo, 
the analysis of the program participation occurs only when it has been determined that a beneficiary 
will be employed on site "at" an institution of higher education or a related or affiliated nonprofit 
entity by a third party petitioner. In other words, the locus actus, or place of performance is 
paramount in determining whether a petitioner qualifies for an exemption from the H-1B cap as an 
institution of higher education under section 214(g)(5)(A) of the Act. It is clear from the evidence 
presented in this matter that the Beneficiary will be employed at the Petitioner's facilities and 
therefore, does not qualify for the third party employer exception in the memo. 
4 For more information about our precedent and non-precedent decisions, see USCIS Policy Memorandum PM-602-
0086.1, Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO), November 18, 2013 . 
http://www.uscis.gov/sites/default/files/files/nativedocuments /PM-602-0086-1_AAO _Precedent_ and_ Non-
Precedent_ Decisions -'Final_ Memo.pdf. 
5 See Memorandum from Michael Aytes, Associate Director for Domestic Operations, USCIS, HQPRD 70/23.12 , 
Guidance Regarding Eligibility for Exemption from the H-1 B Cap Based on §I 03 of the American Competitiveness for 
the Twenty-First Century Act of 2000 (AC21) (Public. Law 1 06-313) (June 6, 2006), 
http://www. uscis .gov/sites
/default /files/USCIS/Laws/Memoranda/Static _Files _Memorand a/ Archives%20 1998-
2008/2006 /ac21 c060606 .pdf. 
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Matter of F-H-P-S-
Upon review, the Petitioner has not established that it is related to or affiliated with an institution of 
higher education and exempt from the H-1B cap pursuant to section 214(g)(5) ofthe Act. 
III. 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 ofF-H-P-S-, ID# 14827 (AAO Dec. 23, 2015) 
8