dismissed H-1B Case: Education

MATTER OF L-C-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 14, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
Petitioner, a school system, seeks to temporarily employ the Beneficiary as an "ESL elementary 
school teacher" under the H -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 asserts that the Director erred in 
finding that the Petitioner has not established eligibility for the exemption sought. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides a nonimmigrant 
classification for aliens who are coming temporarily to the United States to perform services in a 
specialty occupation. 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-1B visas issued per fiscal year may not exceed 
65,000. 
The instant petition was filed for an employment period to commence in August 2015. The 2015 
fiscal year (FY15) extends 'from October 1, 2014, through September 30, 2015. The instant petition 
is therefore subject to the 2015 H-1B cap, unless exempt. Further, on April 7, 2014, 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 FY15. The Petitioner filed the instant visa 
petition on September 10, 2015. Unless this visa petition is exempt from the cap, it cannot be 
Matter of L-C-S-
approved. At issue in this matter, therefore, is whether the Beneficiary qualifies for an exemption 
from the FY15 H-1B cap pursuant to section 21j(g)(5)(A) of the Act, 8 U.S.C. § 1184(g)(5)(A). 
" In general, section 214(g)(5) of the Act provides that: 
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) ofthe Higher Education Act of 
1965 (20 [§] U.S.C. 1001(a))), or a related or affiliated nonprofit entity; 
(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 the~;t 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 Petitioner filed the H-1B petition on June 29, 2015. Section 3, "Numerical Limitation 
Information," on the Form I-129 H-1B Data Collection and Filing Fee Supplement, reads as follows: 
1. Specify the type ofH-1B petition you a~e filing. (select only one box): 
D a. CAP H-1B Bachelor's Degree 
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(b)(6)
Matter of L-C-S-
D b. CAP H-lB U.S. Master's Degree or Higher 
D c. CAP H-lBl Chile/Singapore 
D 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, (the University). 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 University. 
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-lB cap. However, 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-lB 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; 
(2) Operated by an institution of higher education; or 
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(b)(6)
Matter of L-C-S-
(3) Attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary.1 
The Petitioner's claimed relationship or affiliation with the University is based on their contractual 
partnership under the program. The contract between the 
Petitioner and the University is, at its essence, an agreement to terms pursuant to which the 
University will arrange for its students field experience and clinical practice in teaching at the 
Petitioner's schools. The agreement contains terms pursuant to which the University's students 
would be selected and supervised during their internship. Neither the agreement nor any other 
document in the record indicates that the Petitioner and the University are under shared ownership or 
control by the same board or federation. Without more, the evidence is also insufficient 
to show that 
the University 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). 
The Petitioner asserts that it qualifies as a "cooperative" of the University through the 
program. On appeal, the Petitioner highlights the contract's language that 
the parties "agree to collaborate to assure shared responsibilities in the delivery of a planned 
sequence of field and clinical experiences for candidates enrolled in approved educator preparation 
programs." The Petitioner specifically highlights the contract's provision calling for "share[d] 
responsibilities for providing facilities, trainers, and funding" for the program. The Petitioner asserts 
that this provision, in particular, demonstrates ",shared ownership and operations." 
Without further evidence, we are not persuaded that the Petitioner qualifies as a "cooperative" of the 
University. That is, the Petitioner has not sufficiently demonstrated that the contract's vague 
provisions for collaboration and shared resources amount to shared control or ownership. Other than 
stating that the parties "agree to share responsibility for providing facilities, trainers, and funding," 
the contract does not further specify what these shared resources and responsibilities are. For 
instance, there is no further explanation of the referenced "funding," e.g., how much and/or what 
percentage each party contributes, and each party's role, responsibilities, and authority in managing 
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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(b)(6)
Matter of L-C-S-
the funding. The Petitioner has not sufficiently explained how these aspects demonstrate "shared 
ownership and operations." 
Rather, the terms of the contract indicate that the University maintains control over the program. In 
particular, the contract states that the University will provide the Petitioner's employees (clinical 
teachers) with an internship handbook which "will define the clinical teacher's and university 
supervisor's explicit responsibilities relati~e to instruction, observation, conferencing, evaluation, 
grading and the licensure recommendation." Additionally, only the University's personnel "may 
terminate an internship assignment." Overall, the Petitioner has not demonstrated that the Petitioner 
and the University have shared ownership or control with respect to the 
program, 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,prqceedings, 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 L-C-S-, ID# 16151 (AAO July 14, 2016) 
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