dismissed H-1B Case: Medical Technology

MATTER OF S-A-R-H-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a nonprofit health consortium, seeks to temporarily employ the Beneficiary as a 
"medical technologist" 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-18 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 established that it qualifies as an organization that is exempt from the H-1 B 
numerical limitation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that 
the Director erred when determining that the Petitioner is not related or affiliated with an institution 
of higher education. The Petitioner claims that it is exempt from the H-1 B numerical limitation. 
Upon de novo review, we will dismiss the appeal. 
I. H-lB CAP EXEMPTION 
A. Legal Framework 
In general, H-18 visas are numerically capped by statute. Pursuant to section 214(g)(1)(A) of the 
Act, 8 U.S.C. § 1184(g)(1)(A), the total number ofH-18 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 of 2000 (AC21 ), Pub. L. No. 106-313 (Oct. 17, 2000), states, in relevant part, that the 
H-1B cap shall not apply to any nonimmigrant individual issued a visa or otherwise provided status 
under section 101(a)(15)(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 lOl(a) of the Higher 
Education Act of 1965 (20 U.S.C. 1001(a))), or a related or at1iliated nonprofit entity .... " 
Matter ofS-A-R-H-C-
For purposes ofH-18 cap exemption for an institution of higher education, or a related or afliliated 
nonprofit entity, the H -1 B regulations adopt the definition of institution of higher education set forth 
in section 10l(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. § 1001(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 satisfactory 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 organization under the Internal Revenue Code of 
1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(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)(l9)(iii)(B), which was promulgated in connection with the enactment of 
the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), defines what is 
a related or affiliated nonprofit entity specifically for purposes of the H-1 B fee exemption 
prOVISIOns: 
An affiliated or related nonpro_fit entity. A nonprofit entity (including but not limited 
to hospitals and medical or research institutions) that is connected or associated with 
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Matter ofS-A-R-H-C-
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). 1 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) .. 
(2) 
(3) 
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. 2 1 
B. Factual Background 
On the Form 1-129 H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (page 
20), the Petitioner checked box "d" in Section 3, question 1, indicating that it is "CAP Exempt." 
Continuing in Section 3 of the supplement (page 21 ), the Petitioner checked box "b" to specify that it 
1 See USCIS Policy Memorandum PM-602-0037, Additional Guidance to the Field on Giving Deference to Prior 
Determinations of H-1 B Cap Exemption Based on Affiliation (Apr. 28, 20 II), 
https://www.uscis.gov/sites/default/files/USCIS/Outreach/Feedback%200pportunities/lnterim%20Guidance%20for%20 
Comment/Additional-guidance-deference-hI B-cap-PM-602-0037 .pdf See also Memorandum from Michael Aytes, 
Associate Dire~tor for Domestic Operations, USC IS, HQPRD 70/23.12, Guidance Regarding Eligibility for Exemption 
from the H-JB Cap Based on §103 of the American Competitiveness in the Twenty-First Century Act o{2000 (AC2!) 
(Public Law /06-313) (June 6, 2006). 
2 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 Immigration and Naturalization Service 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). 
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(b)(6)
Matter ofS-A-R-H- C-
is cap exempt because it "is a nonprofit entity related to or affiliated with an institution of higher 
education as defined in section 101(a) ofthe Higher Education Act of 1965, 20 U.S.C. [§] lOOl(a)." 
The Petitioner asserts that it is a nonprofit organization related to or affiliated with 
The Petitioner submits its one-year agreement with which is effective 
May I, 2015 , and renews automatically unless either party declines to renew and notifies the other in 
writing. The record also includes a June 14, 2016 , letter signed by the Program Coordinator , 
Medical Laboratory Sciences , confirming that "is related to [the 
Petitioner] through its agreement for providing clinical instruction to students participating in the 
Medical Laboratory Sciences program at " 
C. Analysis 
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)(l9)(iii)(B): shared ownership or control by 
the same board or federation. 
Upon review, the record does not establish that the Petitioner and are owned or controlled by 
the same boards or federations. We interpret the terms "board" and "federation" as referring 
specifically to educational bodies such as a board of education or a board of regents. The Petitioner 
also does not expressly claim that it shares the same board or federation with these institutions. 
Consequently , we find that the Petitioner has not met the first prong of 8 C.F.R. 
§ 214.2(h)(l9)(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)(l9)(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, which is self-described as "one of the oldest and 
health organizations in the nation." Nor does the Petitioner claim that it is operated by an institution 
of higher education . Accordingly, we find that the Petitioner has not met the second prong of 
8 C.F.R. § 214.2(h)(19)(iii)(B). 
Third , we consider whether the Petitioner has established that it is a related or atliliated 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. In its appeal brief, the Petitioner 
specifically states that it qualifies as a "cooperative." 
In the supplementary information to the interim regulation now found at 8 C.F.R. 
§ 214.2(h)(19)(iii)(B) , the former Immigration and Naturalization Service stated that it drafted the 
regulation "drawing on 
generally accepted definitions " of the terms. 63 Fed. Reg. 65657 , 65658 
(Nov . 30, 1998). 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 · 
4 
(b)(6)
Matter ofS-A-R-H-C-
212, 384, 1565 (9th Ed. 2009) (defining the terms branch, cooperative, and subsidiary); see also 
Webster's Nnt' College Dictionary at 699 (3rd ed. 2008) (defining the term member). 
The agreement indicates its purpose is to establish guidelines for clinical course instruction of 
students participating in Medical Laboratory Sciences program for the students to gain 
clinical and professional experience. The parties agree that the "course of instruction (the 'clinical 
program') will cover periods of time mutually agreed upon between University and [the Petitioner]," 
and that the parties will agree to the number of students participating in clinical programs each year. 
The agreement generally sets out the responsibilities for each party to the agreement. 
The Petitioner emphasizes that it and operate a clinical program that entails close 
collaboration, shared control, and mutual assistance toward the common goal of promoting higher 
education for students enrolled at the university. The Petitioner claims that this cooperation 
established by its agreement with shows that the duties of it and pursuant to the 
clinical program are so intertwined that a cooperative association is established. 
We have reviewed the Petitioner's agreement with and the Petitioner and letters. 
However, the agreement provides only a limited outline of the Petitioner and 
responsibilities under the agreement. For example, the Petitioner agrees that it will cooperate with 
the university to provide professional experience in all available aspects of the practices associated 
with the students' area of study, that it will cooperate in evaluating students on forms provided by 
the university, and that it will make time and space available to clinical instructors for 
attending meetings. The agreement also indicates that representatives "will, in consultation 
with [the Petitioner], assure that program participants have access to adequate staff, facilities, 
equipment, supplies and other resources necessary to meet the educational goals and objectives of 
the clinical program," and that the "[s]tudents will observe and participate, as appropriate, in the 
provision of Laboratory services to patients, and will perform clinical assignments as specified by 
[the Petitioner's] Laboratory Director or designee." However, the agreement also specifically states 
that the students will not be considered the Petitioner's employees. Additionally, the general terms 
of the agreement do not require the Petitioner to assume responsibility for the instruction of the 
students, other than to allow their observation and limited participation. Nor do the parties expressly 
agree to engage in any cooperative management of the clinic program, other than for the Petitioner 
to provide the facility where the students may learn. The agreement does not indicate that the 
Petitioner participates in the selection of students for participation in the clinical program. 
The general terms of the agreement and the letters submitted for the record are insufficient to 
establish that both parties share ownership or control such that a cooperative relationship is 
established. While the Petitioner and may collaborate generally in the education and training 
of students, the Petitioner has not demonstrated that it is attached to as a member, 
branch, cooperative, or subsidiary of with some type of shared ownership and/or control. 
Rather, the Petitioner's contractual arrangement with to provide a facility and clinical 
experiences for their students is limited in scope. Moreover, we note that the contractual 
arrangement between the two parties may be terminated with 60 days-notice. The evidence of 
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Matter ofS-A-R-H-C-
record demonstrates that these two entities are independent and unrelated and that any relationship is 
governed by a contract that does not create shared ownership or control. 
The Petitioner also references an unpublished, non-precedent decision issued by this office in 
September 2006, in support of its claim that it is cap exempt pursuant to the regulation at 8 C.F.R. 
§ 214(h)(19)(iii)(B). The Petitioner is free, of course, to demonstrate that the facts of that case is 
similar to the facts of the instant case, to refer to the reasoning of those cases, and to urge that the 
same or similar reasoning is extended to the instant case. However, the case cited has no probative 
value as precedent. Moreover, the Petitioner has not furnished probative evidence to establish that 
the facts of the instant petition are analogous to those in the unpublished decision and has not 
furnished evidence that the reasoning in that matter is reasoning that we currently follow. Further, 
while 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding on all USCIS employees 
in the administration of the Act, unpublished decisions are not similarly binding. 
The record does not demonstrate that the Petitioner is attached to an institution of higher education 
as a "cooperative," "member," "branch," or "subsidiary" in a manner consistent with the generally 
accepted definitions of those terms, all of which require some degree of shared ownership and/or 
control. Accordingly, the Petitioner has not demonstrated that it is exempt from the H-1 B cap 
pursuant to section 214(g)( 5) of the Act. 
II. 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 of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fS-A-R-H-C-, ID# 160653 (AAO Dec. 22, 2016)