dismissed H-1B Case: Medicine

u.s. Citizenship 
and Immigration 
Services 
MATTER OF M-A-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 13,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a hospital, seeks to temporarily employ the Beneficiary as a "medical technologist" 
under the H-IB 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-lB program allows 
a U.S. employer to temporarily employ a qualified individual in a position that requires both (a) the 
theoretical and practical application of a body of highly specialized knowledge arid (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 
evidence of record does not establish that the Beneficiary qualifies for an exemption from the Fiscal 
Year 2016 (FY16) H-IB cap based on the Petitioner's relation to or affiliation with an institution of 
higher education. 1 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and copies of 
previously submitted evidence. The Petitioner asserts that the evidence of record "is sufficient in 
establishing that the Petitioner is attached to institutions of higher education as a cooperative." 
Upon de novo review, we will dismiss the appeal. 
I. H-IB CAP EXEMPTION 
A. Legal Framework 
In general, H-IB 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. 
1 U.S, Citizenship and Immigration Services (USCIS) announced that the H-IB cap for FYI6 was reached on April 7, 
2015. 
Matter of M-A-H-
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-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 10l(a) of the Higher 
Education Act of 1965 (20 U.S.C. 1 001(a))), or a related or affiliated nonprofit entity .... " 
For purposes of H -1 B cap exemption for an institution of higher education, or a related or affiliated 
nonprofit entity, the H-1B regulations adopt the definition of institution ofhigher education set forth 
in section 101(a) of the Higher Education Act of 1965. Section 101(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. 
2 
Matter of M-A-H-
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 (ACWIA), defines what is 
a related or affiliated nonpro:fit entity specifically for purposes of the H-1B fee exemption 
prOVISIOns: 
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 la'Y at the time of the 
enactment of AC21: the definition found at 8 C.F.R. § 214.2(h)(19)(iii)(B). 2 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 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.3 
2 See USCIS Policy Memorandum PM-602-0037, Additional Guidance to the Field on Giving Deference to Prior 
Determinations of H-18 Cap Exemption Based on Affiliation (Apr. 28, 2011), 
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 Director for Domestic Operations, USC IS, HQPRD 70/23.12, Guidance Regarding Eligibility for Exemption 
from the H-1 B Cap Based on § 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) 
(Public Law 106-313) (June 6, 2006). 
3 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 Non immigrants on H-1 8 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, II 0-11 (proposed Dec. 20, 
2000) (to be codified at 20 C.F.R. pts. 655-56). 
3 
(b)(6)
Matter of M-A-H-
B. Factual Background 
At "Section 2. Fee Exemption and/or Determination" of the Form I-129, H-1B and H-1B1 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 10l(a) of the Higher Education Act of 1965, 20 
U;S.C. I OOI(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 lOI(a) of the Higher 
Education Act of 1965, 20 U.S.C. IOOI(a)." 
In response to the Director's request for evidence (RFE), the Petitioner again asserted that it qualifies 
as a non-profit entity affiliated with an institution of higher education. The Petitioner pointed to 
prior petitions it has filed since 2006 which USCIS approved as cap-exempt, and asserted that 
deference should be accorded to these approvals pursuant to USCIS interim guidance.4 The 
Petitioner also explained that its Federal Employer Identification Number (FEIN) changed after the 
hospital's ownership and operations were changed to effective 
April 1, 2005. The Petitioner attested that, despite the transfer of ownership and operations, there 
has been "no significant change in circumstances." 
In support of its petition, the Petitioner submitted, inter alia, "affiliation" agreements it has with 
and 
The Petitioner also submitted a letter from the 
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 of8 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 
or 
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 does not expressly claim that it shares the 
4 USCIS Policy Memorandum PM-602-0037, supra . This memorandum sets forth interim guidance o~ H-1 B cap 
exemptions for non-profit entitie s "related to or affiliated with" an institution of higher education whereby, until further 
notice , USCJS should defer to prior ' cap exemption determinations made on or after June 6, 20016 , provided that 
petitioners can document that they were previously determined to be cap exempt. This interim procedure is meant to 
promote consistency in adjudications while USCIS review s its policy on H-1 B cap exemption s. 
4 
(b)(6)
Matter of M-A-H-
same board or federation with these institutions, either. Consequently, we find that the Petitioner has 
not met the first prong of 8 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, which is self-described as a "hospital [which] operates as a 
governmental organization licensed by the State of Texas as a district-authority owned hospital." 
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 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 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 ofthese 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, 1565 (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). 
Although the Petitioner claims /that it qualifies as a "cooperative," the Petitioner has not further 
explained why it qualifies as such. That is, other than presenting copies of its "affiliation" 
agreements with the various institutions of higher education, the Petitioner has not identified and 
explained which provisions within these agreements establish some type of shared ownership and/or 
control. Instead, we find that these agreements are very limited in scope. Essentially, they contain 
terms pursuant to which students from these educational institutions may gain clinical experience at 
the Petitioner's facilities. The Petitioner provid es the students with acc ess to its facilities and 
clinical staff supervision, but each educational institution maintains control, authority, and 
responsibility for the educational programs which are the subject of the "affiliation" agreements. 
Specifically, all ofthe "affiliation" agreements contain the same or similar provisions stating that the 
educational institution will "[m]aintain the authority and responsibility for education programs for its 
students which may be conducted within [the Petitioner's] facilities," or will "control and supervise 
all clinical learning experiences in the Program." 
The Petitioner submits a letter from the stating that it has had "a working 
partnership 
with [the Petitioner]," and that the joint report with entitled 
was "made possible through a 
cooperative partnership between and [the Petitioner]." The Petitioner also submitted a copy 
of the afore-mentioned joint report as well as additional documentation about the 
5 
(b)(6)
Matter of M-A-H-
(to which the belongs). However, the Petitioner has not further explained the 
nature of its "cooperative partnership" with the or nor has the 
Petitioner submitted documentation demonstrating that a formal partnership or cooperative exists 
with these entities, and if so, the) terms of that formal partnership or cooperative. "[G]oing on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings." Matter ofSojjici , 22 I&N Dec. 158, 165 (Comm' r 1998) (citing Matter 
ofTreasure CraftofCal ., 14 I&N Dec. 190 (Reg' ] Comm'r 1972)). 
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) ofthe Act. 
1 
II. PRIOR APPROVALS 
The Petitioner asserts that previously filed petitions were approved by USCIS with a determination 
of cap exemption. The record contains, inter alia, copies of the P€titioner's prior approval notices 
and the underlying petitions. The Petitioner claims that, based on these prior approvals, USCIS must 
defer to these prior determinations pursuant to USCIS policy guidance.5 We disagree. 
Generally, USCIS is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., ,\1atter of 
Church Scientology Int '!, 19 I&N Dec. 593, 597 (Comm. 1988). A prior approval does not compel 
the approval of a subsequent petition or relieve the petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 
26, 1990). Thus, despite the deference generally afforded to prior approvals pursuant to USCIS 
interim policy, there is no requirement that such deference be perpetuated when evidence of clear 
error, as seen here, is demonstrated.6 
Again, the Petitioner has not adequately explained how the evidence of record demonstrates that the 
Petitioner qualifies as a "cooperative" (or a "member," "branch," or "subsidiary") with an institution 
of higher education. On its face, the "affiliation" agreements between the Petitioner and the various 
institutions of higher education are limited in scope, and do not contain any provisions indicating 
any sort of shared ownership and/or control. If the Petitioner's previous nonimmigrant petitions 
were approved by USCIS with a determination of cap exemption based on the same deficient 
evidence contained in the current record, this would constitute material and clear error on the part of 
the Director, and we are not required to accord deference in this instance.7 
5 USCIS Policy Memorandum PM-602-0037 , supra. 
6 /d 
7 
Several of the "affiliation " agreements were executed after the date of the Petitioner's prior approvals . The Petitioner 
has not clarified which of the submitted "affiliation " agreements it relied upon to obtain the prior approvals. In any 
6 
Matter of M-A-H-
The Petitioner further has not demonstrated that USCIS should accord deference in this instance, as 
the Petitioner has not overcome the Director's concerns regarding the Petitioner's prior approvals. 
More specifically, in both her RFE and decision denying the petition, the Director pointed out that 
the Petitioner had recently filed petitions under the regular H-lB cap, not as a cap-exempt entity. 
The Director also pointed out that several of the Petitioner's approved cap-exempt petitions were 
filed under a different FEIN, thus raising questions as to whether there has been a "significant 
change in circumstances." 
In response to the Director's concerns, the Petitioner explained that its prior petitions filed under the 
regular H-lB cap were all extension petitions, and that its prior attorney failed to indicate the 
Petitioner's "CAP exempt filing category." The Petitioner further claimed that its use of a new 
FEIN (75-XXXXXXX) was merely due to its change in ownership and operations, and did not 
indicate any "significant" changes with respect to its "affiliation" agreements. However, the 
Petitioner's explanations are not corroborated by and consistent with the submitted evidence. 
Here, although the Petitioner claimed that its prior attorney failed to properly indicate the 
Petitioner's "CAP exempt filing category," the Petitioner did not submit copies of these particular 
petitions to corroborate its assertions regarding attorney error. We note that several of the 
Petitioner's prior petitions appear to have been self-prepared as no preparer information or 
signatures were contained on the forms. In any event, the Petitioner signed each petition under 
penalty of perjury certifying that the information contained therein was true and correct to the best of 
its knowledge, and thus, alleging attorney error is not sufficient to absolve the Petitioner of its 
responsibility for its attestations on the petitions. We also note that extension petitions are statutorily 
exempt from the H -1 B cap, which further raises questions as to why the Petitioner would file at least 
four cap-subject petitions.8 
And contrary to the Petitioner's assertion that its FEIN changed with its change in ownership and 
operations effective April 1, 2005, several of the Petitioner's approved petitions filed after 
April I, 2005 still identified the Petitioner under its old FEIN number (43-XXXXXXX).9 The 
Petitioner has not explained why it continued to use its old FEIN number in these petitions. 
Accordingly, the Petitioner has not sufficiently overcome the Director's concerns and demonstrated 
that its prior cap-exempt determinations should be accorded deference. · 
For the reasons set forth above, the Petitioner has not established that the Beneficiary qualifies for 
exemption to the numerical cap on H-lB nonimmigrants based on the Petitioner's relation to or 
affiliation with an institution of higher education. The US CIS policy memorandum relied upon by 
the Petitioner does not mandate deference to prior cap-exempt determinations in this case here. 
event, we find that none of the affiliation agreements are sufficient to establish the requisite shared ownership and/or 
control with the educational institutions. 
8 Section 214(g)(7) of the Act specifically exempts "[a]ny alien who has already been counted, within the 6 years prior to 
the approval of a petition" from again being counted towards the H-1 8 cap. 
9 These petitions were filed in December 2005, December 2008, and April 2007. 
~Matter of M-A-H-
III. CONCLUSION 
In visa petition proceedings, 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 M-A-H-, ID# 12595 (AAO Oct. 13, 2016) 
8