dismissed H-1B Case: Equine Therapy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-T-R-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 9, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a therapeutic horseback riding center, seeks to employ the Beneficiary as a "Herd 
Manager/Therapeutic Riding Manager" under the H-1B nonimmigrant classification. See Immigration 
and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
California Service Center, denied the petition. The matter is now before us on appeal. Upon de novo 
review, we will dismiss the appeal. 
I. ISSUES 
The Director denied the petition, finding that the evidence of record did not establish that: (1) the 
Beneficiary is entitled to an exemption from the H-1B cap; and (2) the proffered position qualifies as a 
specialty occupation. 
II. FACTUAL AND PROCEDURAL BACKGROUND 
The Petitioner filed the instant visa petition on February 27, 2015, for a requested validity period of 
March 1, 2015, through February 28, 2018. The 2015 fiscal year (FY15) extends from October 1, 
2014, through September 30, 2015. On April 7, 2014, U.S. Citizenship and Immigration Services 
(USCIS) issued a notice stating that it had received sufficient numbers of H -1 B petitions to reach the 
H-lB cap for FY15. 
The Form I-129 H Classification Supplement at Page 19, Section 3: Numerical Limitation 
Information, states, inter alia: 
1. Specify the type of H -1 B 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 box d, indicating that it is "CAP Exempt." Also, in the third question at 
Section 3, to explain why the Petitioner believes that the instant visa petition is exempt, the 
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Petitioner checked box b, indicating that the Petitioner 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. 1001(a). The Petitioner did not claim any other exemption from the cap. 
In a letter, dated February 25, 2015, and submitted with the visa petition, the Petitioner asserted that 
it is a nonprofit organization and that it has affiliation agreements with various universities and 
colleges , which it named. The Petitioner provided an "Affiliation Agreement" that it entered into 
with , and several other agreements with different universities 
and colleges. Those 
agreements set out the terms pursuant to which the colleges and universities 
might send students to work at the Petitioner's location in order to gain clinical experience. 
Subsequently, in response to the Director's request for evidence (RFE) issued in this case, the 
Petitioner provided letters from two officials of They assert that a cooperative relationship 
exists between the Petitioner and the university in that it sends its students to complete internships at 
the Petitioner's location for college credit as detailed in the agreement previously discussed. 
The Director denied the visa petition finding that the Petitioner had not demonstrated that the instant 
petition is exempt from the statutory cap. On appeal, the Petitioner contends that its "Affiliation 
Agreement" with demonstrates that it is affiliated with that institution and therefore exempt 
from the cap. 
III. THE H-1B CAP 
A. Legal Framework 
In general, H-1 B 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 numerical 
limitation does not apply to a nonimmigrant alien 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 101 (a) of the Higher Education Act of 1965 
(20 U.S.C. lOOl(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). 
1. "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) ofthe Higher Education Act of 1965. Section 101(a) of the Higher Education Act of 
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: 
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(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. 
The governing statute, 8 U.S.C. § 1184(g)(5)(A), contains no definitions for determining if an 
employer qualifies as a "related or affiliated nonprofit entity" of an institution of higher education 
under 20 U.S.C. § lOOl(a). 
USCIS provided guidance on this subject in a June 2006 memo from Michael Aytes, Associate 
Director for Domestic Operations, U.S. Citizenship and Immigration Services, U.S. Department of 
Homeland Security, to Regional Directors and Service Center Directors, Guidance Regarding 
Eligibility for Exemption from the H-1B Cap Based on §103 of the American Competitiveness in the 
Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) HQPRD 70/23.12 (June 6, 2006) 
(hereinafter referred to as "Aytes Memo"). 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). See Aytes Memo at 4 ("[T]he H-lB regulations define what is an affiliated 
nonprofit entity for purposes of the H-lB 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-lB cap"). 
Title 8 C.F.R. § 214.2(h)(19)(iii)(B), which was promulgated in connection with the enactment of 
ACWIA,1 defines what is a related or affiliated nonprofit entity specifically for purposes of the H-lB 
fee exemption provisions: 
1 Enacted as Title IV of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for 
Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat. 2681,2681-641. 
Matter ofC-T-R-C-
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 the American 
Competitiveness in the Twenty-first Century Act (AC21), Pub. L. No. 106-313 (October 17, 2000), 
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 ofthe enactment of AC21: the definition found at 8 C.P.R. § 214.2(h)(19)(iii)(B). As such, we 
find that USCIS reasonably interpreted AC21 to apply the definition of the phrase found at 8 C.P.R. 
§ 214.2(h)(19)(iii)(B), and we will defer to the Aytes Memo in making our determination on this issue. 
Although we note the petitioner's arguments that the ACWIA statutory definition is too restrictive 
when interpreting the cap exempt provision, the petitioner does not provide cogent and probative 
evidence supporting its alternative interpretation. Moreover, we note that this office defers to the 
USCIS Senior Policy Council to prescribe agency policy. See Policy Memorandum issued by Ron 
Rosenberg, Chief, Administrative Appeals Office, U.S. Citizenship and Immigration Services, U.S. 
Department of Homeland Security, Precedent and Non-Precedent Decisions of the Administrative 
Appeals Office (AAO) PM-602-0086.1 (November 18, 2013). In the absence of statutory or 
regulatory authority specifying a different interpretation, we reiterate that we will defer to the Aytes 
Memo in making our determination on the cap issue. 
The Petitioner must, therefore, establish that the Beneficiary will be employed "at" an entity that 
satisfies the definition at 8 C.P.R. § 214.2(h)(19)(iii)(B) as a related or affiliated nonprofit entity of an 
institution of higher education in order for the Beneficiary to be exempt from the PY15 H -1 B cap 
pursuant to Section 214(g)(5)(A) of the Act. Reducing the provision to its essential elements, we find 
that 8 C.P.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.2 
2 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 
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Matter ojC-T-R-C-
2. "Nonprofit Research Organization or Governmental Research Organization" 
The following definition of "nonprofit research organization or governmental research organization" 
is provided in the regulation at 8 C.P.R.§ 214.2(h)(19)(iii)(C): 
A nonprofit research organization or governmental research organization. A 
nonprofit research organization is an organization primarily engaged in basic 
research and/or applied research. A governmental research organization is a United 
States Government entity whose primary mission is the performance or promotion 
of basic research and/or applied research. Basic research is general research to gain 
more comprehensive knowledge or understanding of the subject under study, 
without specific applications in mind. Basic research is also research that advances 
scientific knowledge, but does not have specific immediate commercial objectives 
although it may be in fields of present or potential commercial interest. It may 
include research and investigation in the sciences, social sciences, or humanities. 
Applied research is research to gain knowledge or understanding to determine the 
means by which a specific, recognized need may be met. Applied research includes 
investigations oriented to discovering new scientific knowledge that has specific 
commercial objectives with respect to products, processes, or services. It may 
include research and investigation in the sciences, social sciences, or humanities. 
B. Discussion 
1. "Affiliated or Related Nonprofit Entity" 
We will first consider whether the Petitioner has established 
that it is an entity related to or affiliated 
with The Health and Human Services Agency Affiliation Agreement states that the 
Petitioner and "desire to make available Clinical educational experiences" and that the 
Petitioner will "cooperate with _ _ in the planning and conduct of the students' Clinical 
educational program, to the end that the students' Clinical educational program may be appropriate 
in light of educational objectives." The agreement also states that "will, in 
consultation with representatives of [the Petitioner], plan and administer the educational program for 
its students at [the Petitioner]" and "will provide [the Petitioner] with its overall plan for the use of 
the Clinical facilities prior to the commencement of the Clinical educational experience." The 
agreement further states that "will have full responsibility for the conduct of any student 
disciplinary proceedings." The record of proceedings also contains a letter from the president of 
which states that has a "cooperative relationship" with the Petitioner. Another letter in 
the 
record of proceedings is from a Master Faculty Specialist at That letter states that the 
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. 80110,80181 (Dec. 20, 2000). 
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Petitioner and have an "on-going partnership" that "has proven to be a unique and exciting 
opportunity for our students." 
Turning to the definition of an "affiliated or related nonprofit entity," we must 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 by the same board or federation. Upon review, 
the record of proceedings does not establish that the Petitioner and are owned or controlled by 
the same boards or federations. Consequently, the Petitioner has not met the first prong of 8 C.F.R. 
§ 214.2(h)(19)(iii)(B). 
Second, we must 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 show that an institution of higher 
education operates the Petitioner within the common meaning of this term. As depicted in the record, 
the relationship that exists between the Petitioner and is one between two separately controlled 
and operated entities. Accordingly, the Petitioner has not met the second prong of 8 C.F.R. 
§ 214.2(h)(19)(iii)(B). 
Third and finally, we must 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)(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.F.R. § 214.2(h)(19)(iii)(B), the former INS 
stated that it drafted the regulation "drawing on generally accepted definitions" of the terms. See 63 
Fed. Reg. 65657, 65658 (Nov. 30, 1998). It is evident from the foregoing discussion of the evidence 
that the Petitioner, when viewed as a single entity, is not attached to an institution of higher education 
in a manner consistent with these terms. There is insufficient evidence that the Petitioner is a member, 
branch, cooperative, or subsidiary of 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 (lOth ed. 2014) (defining the terms member, branch, cooperative, and 
subsidiary). 
On appeal, the Petitioner contends that the agreement between itself and "clearly constitutes a 
'cooperative' for H-lB purposes .... " A cooperative, as defined in Black 's Law Dictionary (lOth 
ed.), is "[a]n 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. The word "cooperative," as listed in this regulation, is not intended to be used as an 
adjective that describes a type of relationship; rather, "cooperative" is intended to be used as a noun 
that describes a type of business arrangement, as evidenced by the other examples provided in the 
regulation, "a member, branch ... or subsidiary."3 Thus, a memorandum of understanding, 
3 This conclusion is consistent with the intent of the ACWIA regulations, where commenters suggested expanding the 
definition of an "affiliate or related non-profit entity" to include cooperative or joint arrangements that do not rise to the 
level of a "cooperative." INS declined to adopt these suggestions, explaining that "such expansive definitions of the 
term 'affiliate or related non-profit entity' would not reflect congressional intent." See 65 Fed. Reg. I 0680 (February 29, 
(b)(6)
Matter ofC-T-R-C-
affiliation agreement or other similar agreement between a nonprofit entity, such as the Petitioner, 
and a higher educational institution, such as that provides for a jointly operated program or 
project may be insufficient to establish that the nonprofit entity is attached to the higher educational 
institution as a cooperative. In order to qualify for cap exemption as a cooperative, it has to be 
established that the nonprofit entity and the higher educational institution jointly owns the nonprofit 
entity, at least in part, and uses the cooperative 's services. 
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. 
2. "Nonprofit Research Organization or Governmental Research Organization" 
As noted above, on the Form I-129, the Petitioner only claimed an exemption from the H-lB cap 
based on its claim that it 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)." 
Nevertheless, we will briefly discuss whether the Petitioner has established that it is a nonprofit 
research organization or a governmental research organization. The record contains insufficient 
indication that the Petitioner is a nonprofit research organization or a governmental research 
organization, nor does it claim to be on appeal. As noted above, "[a] nonprofit research organization 
is an organization primarily engaged in basic research and/or applied research." 8 C.F.R. 
§ 214.2(h)(19)(iii)(C) (emphasis added). While the Petitioner claims that it is engaged in basic or 
applied research, and has a research partnership with for their Physical Therapy 
program, the Petitioner has also stated that research is not its primary function. Thus, the Petitioner 
does not meet the definition of a "nonprofit research organization" for purposes of the H-lB cap. 
The record also contains insufficient indication that the Petitioner is a governmental research 
organization. For these reasons, 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)(C) as a nonprofit 
research organization or governmental research organization under section 214(g)(5)(B) of the Act. 
Upon review, the Petitioner has not established that it is exempt from the FY15 H-lB cap pursuant 
to section 214(g)(5) ofthe Act. Accordingly, the petition must be denied. 
IV. SPECIALTY OCCUPATION 
As the instant petition is numerically barred, we need not address the specialty occupation ground 
for denial. Nevertheless , we will discuss it here with the hope and intention that, if the Petitioner 
seeks again to employ the Beneficiary or another individual as an H-lB employee in the proffered 
position, it will submit sufficient independent objective evidence to address and overcome this 
ground in any future filing. 
2000). 
(b)(6)
Matter ofC-T-R-C-
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)( 4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. The regulations provide additional guidance on the standards 
for specialty occupations stating, in part, the following: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F .R. § 214.2(h)( 4 )(iii)( A). The degree must be in the specific specialty that is directly related to 
the H-lB position, unless the Petitioner demonstrates that an alternative, closely related specialty 
degree applies to the position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) 
(describing "a degree requirement in a specific specialty" as "one that relates directly to the duties 
and responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 
2000). 
B. Discussion 
First, it must be noted that the Petitioner's claimed requirements are inadequate to establish that the 
proposed position qualifies as a specialty occupation. The Petitioner states that its minimum 
educational requirement for the proffered position is a bachelor's degree or equivalent experience. 
The Petitioner further states that the proffered position requires 
(or above) instructor certification or equivalent certification. 
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A petitioner must demonstrate that the proffered position requires a precise and specific course of 
study that relates directly and closely to the position in question. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a degree, 
without further specification, does not establish the position as a specialty occupation. Cf Matter of 
Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college 
degree for the sake of general education, or to obtain what an employer perceives to be a higher 
caliber employee, also does not establish eligibility."). Thus, while a general-purpose bachelor's 
degree may be a legitimate prerequisite for a particular position, requiring 
such a degree, without 
more, will not justify a finding that a particular position qualifies for classification as a specialty 
occupation. Royal Siam Corp. v. Chertoff, 484 F.3d at 147. 
The Petitioner asserts that its minimum requirement for the proffered position is only a bachelor's 
degree, without further requiring that 
that degree be in any specific specialty. Without more, the 
Petitioner's statement alone indicates that the proffered position is not in fact a specialty occupation. 
Also, the Petitioner has not sufficiently demonstrated that the combination of a bachelor's degree 
and a (or above) instructor certification or equivalent 
certification is equivalent to a bachelor's degree in a specific specialty. 
Accordingly, as the evidence of record does not establish a standard, minimum requirement of at 
least a bachelor's degree in a spec(fic specialty, or its equivalent, for entry into the particular 
position, it does not support the proffered position as being a specialty occupation. 
V. BENEFICIARY QUALIFICATIONS 
We will also briefly address the Beneficiary's qualifications to perform the duties of a specialty 
occupation with the hope and intention that, if the Petitioner seeks again to employ the Beneficiary 
or another individual as an H-1B employee in the proffered position, it will submit sufficient 
independent objective evidence to address and overcome this ground in any future filing. We note 
that the combined evaluation of the Beneficiary's education and work experience by 
states that the Beneficiary's education and work experience, considered 
together, is equivalent to a bachelor's degree in equine studies and in 
Therapeutic Riding Instruction. However, that evaluation is insufficient to establish that the 
Beneficiary possesses the equivalent of a U.S. bachelor's degree in any specific specialty. 
Specifically, the claimed equivalency was based in part on experience; however, there is insufficient 
evidence that the evaluator of the Beneficiary's education and background has authority to grant 
college-level credit for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an individual's training and/or 
work experience, and that the Beneficiary also has recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty. See 8 C.F.R. § 
214.2(h)(4)(iii)(C)(4) and (D)(1).4 As such, since evidence was not presented that the Beneficiary 
4 The letter from the president of which states ' is qualified to render a 
professional opinion on the education equivalency of individuals from the United States and/or from other countries in 
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has at least a U.S. bachelor's degree in any specific specialty, or its equivalent, the petition could not 
be approved even if eligibility for the benefit sought had been otherwise established. 
VI. CONCLUSION 
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 ofOti ende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan , 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-T-R-C-, ID# 15379 (AAO Feb. 9, 2016) 
the field of Equine Studies" does not satisfy the requirement that the evaluator has the "authority to grant college-l evel 
credit for training andJor experience in the specialty at an accredited college or university which has a program for 
granting such credit based on an individual's training and/or work experience." 
Another evaluation in the record was prepared by and states that is an "Associate Professor of 
Equine Science at who developed and oversees the minor in Therapeutic 
Horsemanship ," and that, based on the Beneficiary 's education , training , and employment experience , "she clearly 
exceeds the criteria required for students to earn a minor in Therapeutic Horsemanship at This evaluation does 
not state that the Beneficiary holds the equivalent of a degree in Therapeutic Horsemanship at 
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