dismissed H-1B Case: Education

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF DATE: FEB. 8, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , a non-profit charter school, seeks to temporarily employ the Beneficiary as a teacher 
under the H-1 B nonimmigrant classification for specialt y occupations. See Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-IB 
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. 
Beneficiary does not qualify for an exemption from the H-lB cap. 
The Director concluded that the 
The matter is now before us on appeal. In its appeal , the Petitioner submits a brief and asserts that 
the Birector erred in her decision to deny the petition. 
Upon de novo review , we will dismiss the appeal. 
I. H-IB 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 ofH-lB 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-1 B cap shall not apply to any nonimmigrant individual issued a visa or otherwise provided status 
under section 101(a)(l5)(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 I Ol(a) of the Higher 
Education Act of 1965 (20 U.S.C. 100l(a))) , or a related or affiliated nonprotit entity .... " 
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For purposes of H -1 B cap exemption for an institution of higher education, or a related or aHiliated 
nonprofit entity, the H-1 B regulations adopt the definition of institution of higher education set forth 
in section lOl(a) ofthe Higher Education Act of 1965. Section lOl(a) of the Higher Education Act 
of 1965, Pub. L. No. 89-329, 20 U.S.C. § lOOl(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 satisfactor y 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 organi zation under the Internal Revenue Code of 
1986, section 50l(c)(3) , (c)(4) or (c)(6) , 26 U.S.C . 50l(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-1 B fee exemption provisions: 
An affiliated or related nonprofit entity. A nonprofit entity (including but not limited 
to hospitals and medical or research in'stitutions) that is connected or associated with 
an institution of higher education , through shared ownership or control by the same 
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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) . 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)(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: 
(I) 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.' 
B. Factual Background 
At "Section 2. Fee Exemption and/or Determination " of the Form I-129 , H-IB and H-IBl 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. 1001(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)." 
In a letter of support submitted with the petition , the Petitioner stated that it has partnered with 
through a "memorandum of understanding -
1 This reading i~ consist ent 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 s upplerilentary 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 Application s a nd Requirements for Employers Using Nonimmigrants on 
H-1 8 Visas in Specialty Occupations and as Fashion Model s; Labor Certification Proc ess for Permanent Employm ent of 
Aliens in the United States, 65 Fed . Reg. 80, II 0, 80,110-11 (proposed Dec. 20, 200 0) (to be codified at 20 C.F .R. pts. 
655-56). . 
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Learning Site Agreement (agreement)," which "formali?:es its relationship with the university as a 
community based organization" and authorizes the Petitioner to "offer extended learning 
opportunities to students and staff of In support of this assertion, the Petitioner submitted a 
copy of its agreement with 
C. Analysis 
The record does not demonstrate that the Petitioner is related to or atliliated with an institution of 
higher learning. Accordingly, the record does not demonstrate that the Beneficiary is exempt from 
the numerical cap. 
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. 
Upon review , the record contains no evidence establishing that the Petitioner and are owned 
or controlled by the same board or federation. ·The Petitioner also did not indicate that it shares· the 
same board or federation with Consequently, we find that the Petitioner has not met the 
first prong of8 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 non-profit charter school , within the common meaning of this 
term. Although the record contains a copy of the agreement between the Petitioner and the 
agreement does not establish that the Petitioner is operated by Rather, a letter submitted in 
response to the Director's request for evidence (RFE) indicates that students are offered 
teaching internships at the Petitioner's school, and the agreement simply outlines the terms and 
conditions of such internships. 
While may send student teachers to teach and observe at the Petitioner's school, it cannot be 
inferred from association of such a limited scope that the Petitioner is being operated by 
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)(l9)(iii)(B): attached to an 
institution of higher education as a member, branch, cooperative, or subsidiary. 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, 1 565 (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). It is evident from the foregoing discussion of the 
evidence that the Petitioner , a non-profit charter school, is not attached to an institution of higher 
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education in a manner consistent with these terms. There is no probative evidence submitted to 
establish that the Petitioner is a member, branch, cooperative, or subsidiary of 
'---
In response to the RFE, the Petitioner asserted that the agreement with "clearly shows that 
both entities entered into a cooperative agreement where (the Petitioner] provides training 
opportunities to students in the form of providing classroom teacher training." However, 
the purpose of the collaboration is to provide on-the-job training experience tor future teachers. 
Although we acknowledge the Petitioner's assertion that it is attached to. as an educational 
cooperative, such an arrangement is not indicative of shared ownership or control. 
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-IB cap pursuant to section 214(g)(5) of the Act 
D. Alternative Claim of Eligibility 
On appeal, the Petitioner does not address the merits of the Director's decision, but instead asserts 
that the Director erred by not approving the petition pursuant to the general H-1 B Cap. We disagree. 
The regulation at 8 C.F.R. § 214.2(h)(8)(ii)(B) provides that "[p ]etitions 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 .... " For purposes of the regulation at 8 C.F.R. 
§ 214.2(h)(8)(ii)(B), the determination date for a Beneficiary's ineligibility for an exemption to the 
general H-1 B Cap is the date on which that determination is tirst articulated by USC IS in a decision 
properly served upon a Petitioner. 
Here, the determination date tor the Beneficiary's ineligibility for the claimed cap exemption is the 
date the Director issued her July 15, 2016 decision. Consequently , as the determination that the 
petition is not exempt from the standard 65,000 numerical limitation was made after April 7, 2016 
final receipt date, the petition must be denied pursuant to 8 C.F.R. § 214.2(h)(8)(ii)(B). 
II. BENEFICIARY'S QUALIFlCA TIONS 
Even if the petition was otherwise deemed approvable, we note that the Petitioner did not submit an 
evaluation of the Beneficiary's foreign degree or sufficient evidence to establish that his degree is 
equivalent to a U.S. bachelor's degree in a specific specialty. Although the record contains a copy of 
the Beneficiary's foreign academic credentials, and a certified translation of those credentials, the 
record does not contain evidence equating the Beneficiary's credentials to a U.S. baccalaureate or 
higher degree pursuant to the provisions 
outlined in 8 C.F.R. § 214.2(h)(4)(iii)(D). As such, since 
evidence was not presented that .the Beneficiary has at least a U.S. bachelor's degree in a specific 
specialty, or its equivalent, the petition . could not be approved even if eligibility for the benefit 
sought had been otherwise established. 
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III. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burdento establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of __ ID# 119676 (AAO Feb. 8, 2017) 
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