dismissed H-1B Case: Education

(b)(6)
MATTER OF C-C-S-D-
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 NONIMMGRANT WORKER 
The Petitioner, a government public elementary and secondary educational school district, seeks to 
temporarily employ the Beneficiary as a "Spanish teacher" under the H-1B nonimmigrant classification 
for specialty occupations. See Immigration and Natiomility Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified individual in aposition 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 Petitioner and Beneficiary qualify for an exemption 
from the Fiscal Year 2016 (FY16) H-IB 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 brief and copies of 
previously submitted evidence. The Petitioner asserts that the evidence of record is sufficient to 
establish that the Petitioner is related to or affiliated with an institution of higher education by virtue 
of its agreement with 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
In general, H-1B visas are numerically capped by statute. Pursuant to section 214(g)(1)(A) of the 
Act, 8 U.S.C. § 1184(g)(1)(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 of 2000 (AC21), Pub. L. No. 106-313 (Oct. 17, 2000), states, in relevant part, that the 
1 
U.S. Citizenship andlmmigration Services (USCIS) announced that the H-18 cap for FY16 was reached on April 7, 
2015. 
Matter ofC-C-S-D-
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. IOOI(a))), or a related or affiliated nonprofit entity .... " 
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.Z 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. 
(Emphasis added.) 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 
(ACWIA), defines what is a related or affiliated nonprofit entity specifically for purposes of the 
H-1B fee exemption provisions: 
2 The regulation at 8 C.F,R. § 214.2(h)(19)(iv) defines a nonprofit organization or entity as (1) 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 (2) 
an entity which has been approved as a tax exempt organization for research or educational purposes by the Internal / 
Revenue Service. 
2 
Matter ofC-C-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). 3 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 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. 4 
II. 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 
3 See USCIS Policy Memorandum PM-602-0037, Additional Guidance to the Field on Giving Deference to Prior 
Determinations of H-JB Cap Exemption Based on Affiliation (Apr. 28, 2011), 
https://www.uscis.gov/sites/default/files/USCIS/Outreach/Feedback%200pportunities/lnterim%20Guidance%20for%20 
Comment/Additional-guidance-deference-hlB-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-JB Cap Based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) 
(Public Law 106-313) (June 6, 2006). 
4 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-lB 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). 
3 
(b)(6)
Matter ofC-C-S-D-
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 lOl(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 lOl(a) of the Higher 
Education Act of 1965, 20 U.S.C. lOOl(a)." 
In support of the H-1B petition, the Petitioner submitted, inter alia, its Memorandum of 
Understanding with information about the Petitioner's 
concurrent enrollment instruction program through with and a 
"Cooperative Agre~ment" with the 
In response to the Director's request for evidence (RFE) and again on appeal, the Petitioner 
maintains that it is related to or affiliated with through their concurrent enrollment/ 
program. 
III. ANALYSIS 
A. 
We will first consider whether the Petitioner has established that it is "related or affiliated" with an 
institution of higher education pursuant to its relationship with 
As a fundamental matter that precludes analysis of whether the Petitioner is "related or affiliated," 
we find that does not meet the definition of an institution of higher education pursuant to 
section 214(g)(5)(A) of the Act and section lOl(a) of the Higher Education Act of 1965. 
In pertinent part, section 101(a)(1) of the Higher Education Act of 1965 defines an institution of 
higher education as an educational institution that "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." a community college in the State of Iowa, does not · 
meet that part of the definition. 
Pursuant to Iowa code § 260C.2, a "community college" is defined as: 
"Community College" means a publicly supported school which may offer programs 
of adult and continuous education, lifelong learning, community education, and up to 
two years of liberal arts, preprofessional, or occupational instruction partially 
fulfilling the requirements for a baccalaureate degree but confers no more than an 
associate degree; or which offers as the whole or part of the curriculum up to two 
years of vocational or technical education, training, or retraining to persons who are 
preparing to enter the labor market. 
4 
(b)(6)
Matter ofC-C-S-D-
Because Iowa law limits the educational programs offered by community colleges to, at most, an 
associate's degree or up to two years of education or training, does not meet the definition of 
an institution of higher education pursuant to section 101(a) of the Higher Education Act of 1965. 
Accordingly, the Petitioner has not established that it is exempt from the H-1B cap under section 
214(g)(5)(A) of the Act by virtue of its relationship with and further analysis of the nature of 
the Petitioner's relationship or affiliation with is unnecessary. 
B. 
Although the Petitioner's RFE response and appeal no longer mention we will nevertheless 
consider the record with respect to the Petitioner's "Cooperative Agreement" with 
First, we consider whether the Petitioner is a "related or affiliated" nonprofit entity pursuant to the 
first prong of 8 C.P.R. § 214.2(h)(19)(iii)(B): shared ownership or control by the same board or 
federation.5 Upon review, the record does not establish that the Petitioner and are owned or 
controlled by the same educational board or federation. According to the "Cooperative Agreement" 
in the record, is governed by its own board of regents. But the Petitioner is governed by a 
different board of education. Consequently, we find that the Petitioner has not met the first prong of 
8 C.P.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.P.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, which is a public elementary and secondary school district. Nor 
does the Petitioner claim that it is operated by Accordingly, we find that the Petitioner has not 
met the second prong of 8 C.P.R. § 214.2(h)(19)(iii)(B). 
Third, we consider whether the Petitioner has established that it is a related or affiliated nonprofit 
entity pursuant to the third prong of 8 C.P.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.P.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). 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). 
5 We interpret the terms "board" and "federation" as referring specifically to educational bodies such as a board of 
education or a board of regents. 
5 
(b)(6)
Matter ofC-C-S-D-
The only evidence pertinent to the Petitioner's relationship with is the afore-mentioned 
"Cooperative Agreement." Essentially, this agreement sets forth terms pursuant to which 
students may gain teaching experience at the Petitioner's facilities for the 2016-2017 academic year. 
The Petitioner has not identified or explained which provision(s) within this agreement establishes 
some type of shared ownership and/or control. A petitioner's unsupported statements are of very 
limited 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). 
IV. CONCLUSION 
The record does not demonstrate that the Petitioner is related to or affiliated with an institution of 
higher education. Therefore, the instant petition is not exempt from the H-1B cap pursuant to 
section 214(g)(5) of the Act. 
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. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-C-S-D-, ID# 217625 (AAO Dec. 6, 2016) 
6