dismissed H-1B Case: Education

MATTER OF S-0-P- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 30,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a non-profit education organization, seeks to temporarily employ the Beneficiary as a 
"development associate" under the R-1 B 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 submits additional evidence and 
asserts that the evidence of record was sufficient to establish eligibility for the exemption sought. 
Upon de novo review, we will dismiss the appeal. 
. I. LEGAL FRAMEWORK 
Section 101(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides a nonimmigrant 
dassification for foreign nationals 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)(l)(A) of the Act, the total number of H-1B visas issued per fiscal year 
may not exceed 65,000. 
The instant petition was filed for an employment period to commence in January 2016. The 2016 
fiscal year (FY16) extends from October 1, 2015, through September 30, 2016. The instant petition 
is therefore subject to the 2016 H-1B cap, unless exempt. Further, on April 7, 2015, 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 FY16. The Petitioner filed the instant visa 
petition on January 21, 2016. Unless this visa petition is exempt from the cap, it cannot be 
Matter ofS-0-P-lnc. 
approved. At issue in this matter, therefore, is whether the Beneficiary qualifies for an exemption 
from the FY16 H-lB cap pursuant to section 214(g)(5)(A) ofthe Act, 8 U.S.C. § 1184(g)(5)(A). 
In general, section 214(g)( 5) of the Act provides that: 
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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. lOOl(a))), orarelatedoraffiliatednonprofitentity; 
(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)(l) 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 USCIS after the final receipt date to be subject to the numerical limit 
will be denied and filing fees will not be returned or refunded. 
II. ANALYSIS 
The record does not demonstrate that the Petitioner is related to or affiliated with an institution of 
higher learning. Accordingly, the record does not demonstrate that this petition is exempt from the 
numerical cap. 
The Petitioner filed the H-1B petition on January 21, 2016. Section 3, "Numerical Limitation 
Information," on the Form I-129 H-lB Data Collection and Filing Fee Supplement, reads as follows: . 
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(b)(6)
Matter of S-0-P- Inc. 
1. Specify the type ofH-1B petition you are filing. (select only one box): 
0 a. CAP H-1B Bachelor's Degree 
0 b. CAP H-1B U.S. Master's Degree 
or Higher 
0 c. CAP H-1B1 Chile/Singapore 
· 0 d. CAP Exempt 
The Petitioner checked "d," indicating the Petitioner's position that the instant petition is exempt 
from the cap. '· 
Here, the Petitioner asserts that it is a nonprofit organization related to or affiliated with an 
institution of higher education, namely, (College). 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 the College. 
The term "related or affiliated," section 214(g)(5)(A) of the Act, is not defined specifically for 
purposes of determining whether a nonprofit entity is exempt from the H-IB cap. ~owever, the 
regulation at 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 for purposes of the H-1B fee exemption provisions. 
8 C.F .R. § 214.2(h)(19)(iii)(B) states as follows: 
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; 
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Matter ofS-0-P- Inc. 
(2) Operated by an institution of higher education; or 
(3) Attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary. 1 
The Petitioner explained the claimed relationship or affiliation with the College as an "alliance" and 
"collaboration" as follows: 
This will be the fourth year of an ongoing collaboration between [the Petitioner] and 
[the College], in which two students are selected annually to be fellows at [the 
Petitioner] - spending one month each summer at [the Petitioner] in Maine, and the 
following month involved in programming on the ground in Israel and the West 
Bank. The program has had wonderful affects on both [the Petitioner] and [the 
College] communities, and the details of the partnership can be seen in the attached 
MOU. 
[The Petitioner] also welcomes a number of [College] students as interns at its NY 
headquarter office each year as well . . . . The students have been tremendous 
additions to our program, administration, and development teams and we are thrilled 
to see the relationship continue to grow. And, of course, several [of the Petitioner's] 
alumni are now students at [the College]. 
According to the information provided by the Petitioner, it appears that the Petitioner provides 
fellowship opportunities to students at the College to learn about peace building and conflict 
resolution first-hand. It is not clear how the program selects the students, or if the students receive 
any college credit for participating in the fellowship program. The record contains a "Statement of 
Understanding" between the Petitioner and the College. However, the document is very limited in 
scope. It outlines educational goals, structure, travel guidelines, preparatory steps, and other 
information pertinent to the program. However, it is insufficient to show that the Petitioner and the 
College are under shared ownership or control. The evidence is insufficient to show that the College 
operates the Petitioner. 
Moreover, the Petitioner did not provide any documentation to indicate that the Petitioner and the 
College are under shared ownership or controlled by the same board or federation.· In response to 
the Director's request for evidence (RFE), the Petitioner explained that its Chair of the Board of 
Director is also a trustee at the College. However, it does not appear that the Petitioner and the 
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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Matter ofS-0-P- Inc. 
College share ownership or are controlled by the same board .or federation. Without more, the 
evidence is also insufficient to show that the College 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). 
On appeal, the Petitioner cites to a policy memorandum from April 28, 2011, entitled "Additional 
Guidance to the Field on Giving Deference to Prior Determination of H-1B Cap Exemption Based 
on Affiliation." The Petitioner states that it is exempt because it was previously approved as a cap 
exempt organization since June 6, 2006, on the basis of the same affiliation between the Petitioner 
and the College. The Petitioner asserts that the "[ m ]emorandum only permits an officer to re­
adjudicate the issue where the prior determination was 'clearly erroneous' or there 'has been a 
significant change in circumstances related to the affiliation of the petitioner."' The Petitioner 
submitted a copy of the previously filed H-1B petition that was cap exempt. The Petitioner claims 
that two examples of clear error in the memorandum do not apply in this case. The two examples 
include "evidence of affiliation with an organization that is NOT an institution of higher education" 
and "evidence of a prior approval that was subsequently revoked on an affiliation ground." The 
Petitioner states that since the previously approved H-1B petition was automatically revoked based 
upon withdrawal from the Petitioner, it was not revoked on an affiliation ground, and is not an 
example of clear error. 
We note that in providing examples of "significant changes" and "clear error," the memorandum 
indicated "examples of clear error in the prior adjudication may include, but are not limited to," 
suggesting that exceptions to giving deference are not limited to the examples provided in the 
memorandum. We further note, if the previous nonimmigrant petition was approved based on the 
same unsupported and contradictory assertions that are contained in the current record, the approvals 
would constitute material and gross error on the part of the Director. We are not required to approve 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 597 (Comm'r 
1988). 
Upon review of the record of proceedings, and as discussed above, the Petitioner did not submit 
sufficient documentation to establish that it is "related or affiliated with" an institution of higher 
learning. "[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 of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Overall, the Petitioner has hot demonstrated that the Petitioner and the College have shared 
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Matter ofS-0-P- Inc. 
ownership or control, such that the Petitioner can be considered "related or affiliated with" an 
institution of higher learning. 
III. CONCLUSION 
The record does not demonstrate that the Petitioner is related to or affiliated with an institution of 
higher learning. Accordingly, the record does not demonstrate that this petition is exempt from the 
numerical cap. 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 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-0-P- Inc., ID# 123225 (AAO Sept. 30, 2016) 
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