dismissed H-1B Case: Health Care

(b)(6)
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 30, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a health care facility, seeks to temporarily employ the Beneficiary as a "family nurse 
practitioner" 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. § 
1 101(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, Califomia 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-lB 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)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides a nonimmigrant 
classification for foreign nationals who are coming temporarily to the United States to perform 
services in a specialty occupation. 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-1 B visas issued per fiscal year 
may not exceed 65,000. 
In general, section 214(g)( 5) of the Act provides that: 
The numerical limitations contained in paragraph (I )(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
101(a)(15)(H)(i)(b) who-
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Matter of 
(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. 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 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-1 B 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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Matter of 
(3) Attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary. 1 
II. ANAL YSJS 
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-lB petition in February 2016 for an employment period to commence in 
May 2016 and indicated that the instant petition is exempt from the cap. 
The 2016 fiscal year (FY16) extends from October 1, 2015, through September 30, 2016. Further, 
on April 7, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a notice that it had 
received sufficient numbers ofH-lB petitions to reach the H-lB cap for FY16. The instant petition 
is therefore subject to the 2016 H-1B cap, unless exempt. 
Here, the Petitioner asserts that it is exempt from the cap because it is a nonprofit organization 
related to or affiliated with an institution of higher education, namely, 
(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 Petitioner did not provide sufficient documentation to indicate that the Petitioner and the 
University are under 
shared ownership or control by the same board or federation. The Petitioner's 
chief executive officer stated that the Petitioner has entered into two affiliation agreements with the 
University. The record contains one nursing education affiliation agreement and one administrative 
experience agreement between the Petitioner and the University. The agreements indicate that the 
Petitioner will arrange a clinical rotation experience for the University's nursing students, and an 
administrative residency for one specific student. Although the agreements outline educational 
goals, structure, responsibilities of the garties, and other information pertinent to the program, they 
do not indicate that the Petitioner and the University are under shared ownership or control. 
The Petitioner also submitted the University's policies and procedures manual that defines an 
affiliated entity as an "organization that is legally distinct from the [University] but is designed to 
further the mission and goals of [the University]." Thus, the definition of affiliation as defined by 
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, II 0, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 
655-56). 
3 
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Matter of 
the University indicates a separate entity and does not define an affiliate as two entities under a 
shared ownership or control. 
In response to the Director's request for evidence (RFE), the Petitioner provided a declaration of 
the Provost and Vice President of Academic Affairs of the University, that stated 
she also serves in an "individual capacity as voting member of [the Petitioner's] Board of Directors." 
As noted in the affidavit, is working in an "individual capacity" and the affidavit does 
not state that she will vote as a representative of the University. The Petitioner did not provide any 
evidence that has a duty towards the University and is voting in consideration of the 
University. Further, the Petitioner did not provide any other documents to indicate a shared board or 
federation. Thus, the evidence does not establish that the Petitioner and the University have shared 
ownership or are controlled by the same board or federation. 
Second, we consider whether the Petitioner has established that it is an affiliated or related non-profit 
entity pursuant to the second prong of 8 C.F.R. § 214.2(h)(l9)(iii)(B): operation by an institution of 
higher education. With regard to this prong, the common meaning of the term "operate," as defined 
in Webster's New College Dictionary, 3rd edition, is "[t]o control or direct the functioning of' or 
"[t]o conduct the affairs of : MANAGE <operate a firm>." Thus, while an institution of higher 
education may not have ownership and/or ultimate control of a nonprofit entity, a petitioner may still 
qualify under this second prong of the definition of affiliated or related nonprofit entity by 
establishing that the institution of higher education directs the day-to-day functioning of and/or 
manages the daily affairs of the nonprofit entity. 
Here, however, the agreements do not establish management of daily affairs, but state that the 
Petitioner provides nursing rotations or administrative experience in conjunction with the University. 
Specifically, the Petitioner states that the two entities "share control and responsibilities over a 
clinical nursing education program and health administration experience program." The Petitioner 
neither claims nor submits any evidence to corroborate that the University directs the day-to-day 
functioning of and/or manages the daily affairs of the Petitioner. As discussed above, the relationship 
that exists between the Petitioner and the University is one between two separately controlled and 
operated entities. There is nothing in the affiliation agreements granting the University the right to 
manage the daily activities or functions of 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. On appeal, the Petitioner states 
the two 
affiliation agreements between the Petitioner and the University are evidence that the "entities share 
control and responsibility over a clinical nursing education program and health administration 
experience program." 
Upon review of the nursing education affiliation agreement, it states that the Petitioner will provide 
clinical rotations and the Petitioner and the University ''shall mutually determine the scope of the 
Clinical Rotation programs." It appears that the Petitioner and the University will work together to 
establish and run a clinical experience. Thus, the scope of the agreement is very limited to this one 
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Mattera} 
area of clinical rotation. The Petitioner provides the students \vith access to its facilities and clinical 
staff supervision, but each party maintains control, authority, and responsibility for the educational 
programs which are the subject of the "affiliation" · agreement. The same is also true of the second 
agreement whereby it is limited in scope in which the Petitioner provides an administrative residency 
to one specific student. 
The terms member, branch, cooperative and subsidiary all 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). Although the Petitioner and the University are working together for the clinical rotation 
and the administrative residency, it is not enough to establish that they · have created a shared 
ownership and/or control. Instead, it appears that the agreement is for a very limited scope of 
creating a clinical residency. 
On appeal, the Petitioner cites a decision from the Board of Alien Labor Certification Appeals 
(BALCA), Matter of Children's Hospital Corporation, 2011-PER-01338 (BALCA Nov. 15, 2011), 
and asserts that this case established 
that a consistent collaboration between two entities can establish a 
member relationship. However, the Petitioner does not 'state how a decision from BALCA is binding 
in our proceedings. While 8 C.F.R. § 103.3(c) provides that USCIS precedent decisions are binding on 
all its employees in the administration of the Act, BALCA decisions are not similarly binding. 
Further, even if we were to consider the above-referenced case, the facts of the decision can be 
distinguished. Specifically , the BALCA decision indicates a consistent collaboration between the 
two entities since 1949. Further, the entities formed committees to make plans and 
recommendations to the medical school and met monthly to review common problems. The 
Petitioner has not demonstrated the same level of collaboration and history with the University . In 
addition, in the cited case, both entities held itself out to be in an at1iliate relationship. In the case, 
the employer's letterhead indicated that it is a teaching affiliate of the school and the domain name of 
its executive employees' email had the ".edu" suffix, providing further evidence that it is a member 
of the school's consortium of teaching hospitals. Here, the Petitioner has not provided sufficient 
evidence to substantiate such relationship with the University. 
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. 
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Matter of 
ORDER: The appeal is dismissed. 
Cite as Matter of 10# 13837 (AAO Dec. 30, 2016)