dismissed H-1B Case: Education

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MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 19,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a non-profit public school system, seeks to temporarily employ the Beneficiary as a 
"French teacher (middles school)" 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 
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-1B 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 letter and additional 
evidence, asserting that the Director's finding was erroneous. 
Upon de novo review, we will dismiss the appeal. 
I. H-1B 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)(1)(A), the total number ofH-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 
1 U.S. Citizenship and Immigration Services (USCIS) announced that the H-IB cap for FY16 was reached on April 7, 
2015. 
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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 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 .... " 
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 Educatiori)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.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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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 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 U.S. Citizenship and Immigration Services (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.P.R.§ 214.2(h)(19)(iii)(B) allows a 
petitioner to demonstrate that it is an affiliated or related nonprofit entity if it establishes one or more 
ofthe 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 ofhighereducation; 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, 2011 ), 
https://www.uscis.gov/sites/default/fi1es/USCIS/Outreach/Feedback%200pportunities/Interim%20Guidance%20for%20 
Comment/ Additiona1-guidance-deference-h 1 B-cap-PM-602-0037.pdf. See also 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 §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (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. § 2I4.2(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 8 Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for 
Permanent Employment o{Aiiens in the United States, 65 Fed. Reg. 80, II 0, 80, II 0-11 (proposed Dec. 20, 2000) (to be 
codified at 20 C.F.R. pts. 655-56). 
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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. 100l(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 institu,tion of higher education as defined in section 101(a) of the Higher 
Education Act of 1965,. 20 U.S.C. 1 001(a)." 
In 
response to the Director's request for evidence (RFE), the Petitioner submitted an affidavit by 
director of human resources for the Petitioner. states that the 
Petitioner currently 
has a collaboration and affiliation with the 
and based on such a relationship, the Beneficiary was eligible for an exemption from-the FY16 H-1B 
cap. 
The Petitioner also submitted a letter from the dated July 18, 
2014, which stated that "[t]he College of Education is very proud of the collaborative programs 
established with [the Petitioner]." The Petitioner, however, has not submitted any contracts, 
memorandums of understanding, or any additional documentation outlining the nature of its 
relationship with the 
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.F.R. § 214.2(h)(19)(iii)(B): shared ownership or control by 
the same board or federation. In response to the RFE, the Petitioner asserted that it has a 
collaboration and affiliation with the and relies upon the 
July 18, 2014, letter written by the University's Dean of the College of Education. 
However, the Petitioner's assertion that an affiliation exists is insufficient to establish that shared 
ownership or control by the same board or federation exists for both entities. 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 the 
are owned or controlled by the same boards or federations. The Petitioner also did not 
indicate that it shares the same board or federation with the 
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 
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higher education. The evidence in the record does not demonstrate that an institution of higher 
education operates the Petitioner, a non-profit public school system, within the common meaning of 
this term. The Petitioner did not provide any agreements between itself and the 
The letter from the only states that it "is 
very proud of the collaborative programs established with [the Petitioner]." 
While the may send student teachers to teach and/or observe in 
the Petitioner's school system, it cannot be inferred from associations of such a limited scope that 
the Petitioner is being operated by the 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 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). It is 
evident from the foregoing discussion of the evidence that the Petitioner, a non-profit public school 
system, 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 the 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).· 
Again, while the Petitioner implies that it has an affiliation with the 
the only evidence submitted in support of this contention is a one-page letter from the 
Dean of the College of Education, which states simply that it is "very proud" of the collaborative 
programs established with the Petitioner. This letter, by itself, does not establish an affiliation with 
or relationship to an institution of higher education as described above. 
The record contains no other inaependent documentation of the existence of any collaborative 
programs. The record further contains no particular documentation outlining the nature of the 
claimed collaborative programs between the Petitioner and the "[G]oing on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings." Matter ofSo.ffici, 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)). Aside from the unsupported 
claims of the Petitioner, there is no evidence demonstrating that the Petitioner is connected or 
associated with the through shared ownership or control by the 
same board or federation; operated by the or attached to an 
institution of higher education as a member, branch, cooperative, or subsidiary. 
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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 -1 B cap pursuant to section 214(g)( 5) of the Act. 
II. PRIOR APPROVALS 
The Petitioner asserts that previously filed petitions were approved by USCIS with a determination 
of cap exemption based on affiliation. The record contains an affidavit by the director of human 
resources for the Petitioner's school system, which claims that two prior petitions filed by the 
Petitioner were approved by USC IS with a determination of cap exemption based on affiliation since 
June 6, 2006. The Petitioner thus claims that, based on these prior approvals, USCIS must defer to 
these prior determinations since the petitions were approved based on the same evidence submitted 
in support of the instant petition.4 We disagree. 
Generally, 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, e.g., Matter of 
Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm. 1988). A prior approval does not compel 
the approval of a subsequent petition or relieve the petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 
26, 1990). Thus, 
despite the deference generally afforded under USCIS interim policy, there is no 
requirement that such deference be perpetuated when evidence of clear error, as seen here, is 
demonstrated. 5 
Here, the Petitioner submits copies of the prior approved petitions, along with a copy of the April 18, 
2014, letter from the which the Petitioner claims is the same 
evidence submitted in support of the instant petition. For the reasons outlined above, however, this 
single letter is insufficient to establish that the Petitioner is related to or affiliated with an institution 
of higher education and exempt from the H-lB cap pursuant to section 214(g)(5) of the Act. If the 
previous nonimmigrant petitions were approved by USCIS with a determination of cap exemption 
based on the same deficient evidence contained in the current record as claimed by the Petitioner, 
then this constitutes material and clear error 
on the part of the Director. 
For the reasons set forth above, the Petitioner has not established that the Beneficiary qualifies for 
exemption to the numerical cap on H -1 B nonimmigrants based on the Petitioner's relation to or 
affiliation with an institution of higher education. The USCIS policy memorandum relied upon by 
the Petitioner does not mandate deference to prior cap exempt determinations when those prior 
determinations were clearly erroneous, as we have determined is the case here. 6 
' 4 USCIS Policy Memorandum PM-602-0037, supra. This memorandum sets forth interim guidance on H-1 B cap 
exemptions for non-profit entities "related to or affiliated with" an institution of higher education whereby, until further 
notice, USCIS should defer to prior cap exemption determinations made on or after June 6, 20016, provided that 
petitioners can document that they were previously determined to be cap exempt. This interim procedure is meant to 
promote consistency in adjudications while USC1S reviews its policy on H-1 B cap exemptions. 
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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 of. ID# 65612 (AAO Oct. 19, 2016)