dismissed H-1B Case: Education

MATTER OF S-C-U-S-D-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 14, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a public school district, seeks to temporarily employ the Beneficiary as a "4th grade 
Mandarin immersion" teacher under the H-1B nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(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 approval 
of the petition is barred by 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 evidence submitted does not demonstrate eligibility for an exemption from the cap. 
Upon de novo review, we will dismiss the appeal. 
I. THE LAW 
In general, H-lB visas are numerically capped by statute. Pursuant to section 214(g)(l)(A) of the 
Act, the total number of H-lB 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. 1001(a))), or a related or affiliated nonprofit entity," or "is employed (or has received an 
offer of employment) at a nonprofit research organization or a governmental research organization." 
Section 214(g)(5)(A-B) of the Act, 8 U.S.C. § 1184(g)(5)(A-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 -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 of higher education set forth in 
section 101(a) ofthe Higher Education Act of 1965. Section 101(a)bfthe Higher Education Act of 
Matter ofS-C-U-S-D-
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 ofgraduation 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 assura~ce 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. 
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. § 
214.2(h)(19)(iii)(B), which was promulgated in connection with the enactment of American 
Competitiveness and Workforce Improvement Act (ACWIA),2 defines what is a related or affiliated 
nonprofit entity specifically for purposes ofthe H-1B fee exemption provisions: 
1 See USC IS Policy Memorandum HQPRb 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 106-313) 
3 (June 6, 2006), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda! Static _Files_ Memoranda! 
Archives%20 1998c2008/2006/ac21 c060606.pdf (Aytes Memo). ("[T]he H-1 8 regulations define what is an affiliated 
nonprofit entity for purposes of the H-1 B 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-18 cap"). 
2 
Enacted as Title IV of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 
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Matter ofS-C-U-S-D-
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 fmd that 8 C.F.R. § 214.2(h)(19)(iii)(B) allows a 
petitioner to demonstrate that it is a related or affiliated nonprofit entity if it establishes one or more of 
the following: 
(1) The petitioner is associated with an institution of higher education through shared 
ownership or control by the same board or federation; 
(2) The petitioner is operated by an institution of higher education; or 
(3) The petitioner is attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary. 3 
\ II. THE PROFFERED POSITION 
The Petitioner is a public school district, and claims cap exemption based on its affiliation with 
The Petitioner claims "a long 
standing partnership" with which includes "student teacher placement opportunities for teacher 
credential candidates." 
The Petitioner indicates that the Beneficiary will be a part of the Chinese immersion program at 
in The Beneficiary "will plan, carry out and 
1999, Pub. L. No. 105-277, 112 Stat. 2681,2681-641. 
3 This three-part reading is consistent with the Department of Labor's regulation at 20 CFR § 656.40(e)(ii), which is 
identical · to 8 CFR § 214.2(h)(19)(iii)(B) except for an additional comma between the words "federation" and 
"operated." The Department of Labor explains in the supplementary information to its American Competitiveness and 
Workforce Improvement Act of 1998 (ACWIA) regulations that it consulted with the former Immigration ·and 
Naturalization Service (INS) on the issue, supporting the conclusion that the definitions were intended to be identical. 
See 65 Fed. Reg. 80 II 0, 80181 (Dec. 20, 2000). 
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(b)(6)
Matter ofS-C-U-S-D-
evaluate instructional activities for elementary school students m both the English Chinese 
(Mandarin) languages." 
III. ANALYSIS 
The Petitioner has not established that it is an affiliated or related nonprofit entity. 
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 further states that it is not operated 
by an institution of higher education. The Petitioner acknowledges that it does not qualify under the 
first or second prong of 8 C.F.R. § 214.2(h)(19)(iii)(B). 
However, the Petitioner asserts that it is a related or affiliated nonprofit entity pursuant to the third 
prong of8 C.F.R. § 214.2(h)(19)(iii)(B): attached to an institution of higher education as a member, 
branch, cooperative, or subsidiary. Specifically, in response to the request for evidence, the 
Petitioner indicates that in addition to its student teacher placement program, it partners with 
for ' along with another school, 
The provides "guidance for the purpose of boosting college admission 
and retention rates, aligning K-12 with college curriculum, training teachers, and other endeavors 
that are essential to the mission of higher education." The Petitioner states that has an 
executive council from all three entities, an executive director funded by all three entities and a nine­
person steering committee. Further, the Petitioner provides definition of "member" from the Black's 
Law Dictionary as follows: 
Member: (14c). 1. Parliamentary law. One of the individuals of whom an 
organization or a deliberative assembly consists, and who enjoys the full rights of 
participating in the organization - including the rights of making, debating, and 
voting on motions - except to the extent that the organization reserves those rights to 
certain classes of membership. 
The Petitioner asserts that "it is clear that [the Petitioner] is a 'member' of 
enjoys full rights of participating in the organization." 
and that it 
However, we note that is not the entity employing the Beneficiary nor does it qualify as an 
institute of higher education.' Further, while the Petitioner may have certain rights in 
4 On appeal, the Petitioner mentions that it is affiliated with and through and student teacher 
placement program. However, there is no evidence that the Petitioner has an agreement with for student teacher 
placement program. , 
The P_etitioner refers to our unpublished decisions from 2006 and 2010 to claim that the Beneficiary does not have to 
. directly 'engage in activities that further the purpose of the organization. The Petitioner has furnished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decisions. Further, 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, 
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(b)(6)
AfauerofS-C-U-S-D-
there is no evidence that the Petitioner enjoys the full rights of participating in the institutions of 
higher education, or 
We further note that all four terms under 8 C.F.R. § 214.2(h)(19)(iii)(B)(3) 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 LawDictionary (lOth ed. 2014) (defining the terms member, branch, 
cooperative, and subsidiary). Here, the partnership agreements do not indicate that the Petitioner 
may limit or authority in any way, or vice versa. The memorandum of understanding 
regarding indicates that "the parties are independent contractors and that no relationship of 
employer-employee exists between the parties hereto." Without more, we are not persuaded that the 
partnership between the Petitioner, and amounts to shared control or ownership. 
The Petitioner asserts that section 101(e)(2) of the 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 institution of 
higher education. Specifically, the Petitioner observes, states that providing anything of value for 
any purpose to any organization constitutes an "affiliation." Set out in full, section 1 0 1 (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-lB cap. 
unpublished decisions are not similarly binding. Moreover, the cited decision does not support the Petitioner's position. 
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(b)(6)
Matter ofS-C-U-S-D-
On appeal, the Petitioner asserts that it qualifies as a "cooperative" of and The Petitioner 
claims that Black's Law Dictionary defines "cooperative" as "the name given to a group of people 
who have come together to achieve a common goal." However, this defines "cooperative 
association" and not "cooperative" which is defined as "an organization or enterprise ( as a store) 
owned by those who use its services." Therefore, a cooperative, as defined above, would require 
joint ownership by those who use the cooperative's services. 
We find that the Petitioner has not established that it is a cooperative of or That is, the 
Petitioner has not sufficiently demonstrated that the contracts' provisions for collaboration and 
shared resources amount to shared control or ownership. For example, for the student placement 
program with other than stating that the parties will assign supervisors and on-site mentors and 
participate in planning and implementing a comprehensive and coordinated program of support and 
mentoring the intern teacher, there is not sufficient information regarding how much and/or what 
percentage each party contributes, and each party's role, responsibifities, and authority, to establish 
shared ownership and/or control. The Petitioner has not sufficiently explained how these aspects 
demonstrate shared ownership and/or control. 
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. 
IV. CONCLUSION 
The Petitioner has not demonstrated the Beneficiary qualifies for an exemption from the cap 
pursuant to section 214(g)(5)(A) of the Act, 8 U.S.C. § t' 184(g)(5)(A). 
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 ofS-C-U-S-D-, ID# 17846 (AAO Sept. 14, 2016) 
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