dismissed H-1B Case: Medicine

MATTER OF C-M-C-F-
Non-Precedent Decision of the 
AdministratiYe Appeals Office 
DATE: JAN. 19,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a non-profit community health care center, seeks to temporarily employ the Beneficiary 
as a "resident physician" under the H-lB 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 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-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. 
Section 101 ( a)(15)(H)(i)(b) of the Act 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-lB visas are numerically capped by statute. Pursuant to section 214(g)(l)(A) of the Act, 
the total number ofH-lB 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 (1 )(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
10l(a)(l5)(H)(i)(b) who-
Matter ofC-M-C-F-
(A) is employed (or has received an otier 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 1 01 (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-1 B 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 (ACWIA), 
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: 
An affiliated or related nonprofit entity. A nonprofit entity (including but not limited 
to hospitals and medical or research institutions) that is connycted 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 ACWIA 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 ACWIA: 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)(l9)(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 ?oard or federation; 
(2) Operated by an institution of higher education; or 
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Matter ofC-M-C-F-
(3) Attached to an institution of higher education as a . member, branch, 
cooperative, or subsidiary. 
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II. ANALYSIS 
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-1B petition in June 2016 for an employment period to commence in June 
20f6 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. On April 7, 2015, USCIS issued a 
notice that it had received sufficient numbers of H-lB petitions to reach the H-lB cap for FYl6 . 
Therefore, the instant petition is subject to the FY 16 H -1 B 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. 
First, we consider whether the Petitioner and the University are connected or associated through 
shared ownership or control by the same board or federation. The Petitioner submitted an 
"educational affiliation agreement" with the University. The agreement indicates that the Petitioner 
and the University wish to ·"enter into a formal affiliation agreement for the conduct of clinical 
training in educational programs. " The educational programs include: "postdoctoral (Graduate) 
medical education in the medical specialties" ; "postdoctoral (graduate) medical education in the 
other medical specialties for which board certification is available in the United States"; "predoctoral 
(i.e., "undergraduate" or M.D. candidates) education for medical students enrolled in the 
[University]"; "educational services to practicing physicians via continuing medial educational 
programs"; and, "to provide training and educational program in other related health professions." 
However, we find that the agreement between the Petitioner and the University, and the supporting 
documents, are limited in scope. Although the agreement outlines educational goals and a few 
responsibilities for both parties , they are insufficient to show that the Petitioner and th~ University 
are under shared ownership or control by the same board or federation. For example, the agreement 
states that the "corporate autonomy of each party is recognized," and the parties "recognize that any 
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)( 19)(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 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) . 
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Matter ofC-M-C-F-
successful affiliation for the conduct of health care and medical education program is dependent on 
freedom of action and mutual trust requiring consideration of each party in its policy making 
decisions as to the effect of such decisions upon the activities and objectives of the other." Thus, the 
agreement emphasizes that the Petitioner and the University are autonomous, and does not show a 
shared ownership or control 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 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, or manages 
the daily affairs, of the nonprofit entity. 
Here, the agreement states that the Petitioner provides clinical experience in conjunction with the 
University, and the University provides educational programs to the clinic staff, but it does not state 
the University operates the Petitioner. On appeal, the Petitioner states that the two entities share 
control and responsibilities .over the educational program, and the University "retains significant 
control and authority over the faculty appointment process." Specifically, the agreement states that 
the University will approve the faculty appointment, and the Petitioner hnd the University require 
joint agreements and approval of student and resident rotations. However, as discussed above, the 
relationship that exists between the Petitioner and the University is one between two separately 
controlled and operated entities. Further, the relationship between the two entities is limited to the 
clinical program. There is nothing in the affiliation agreements granting the University the right to 
manage the daily activities or functions of the Petitioner. Thus, the evidence does not establish that the 
Petitioner is operated by an institution of higher education. 
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 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 refers to our unpublished decisions from 2006 and 2010 to claim that the Petitioner is 
attached to the University as a cooperative. However, the Petitioner did not submit sufficient 
documentation to establish that the facts of the instant petition are analogous to those in the 
unpublished decisions. 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. 
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Matter ofC-M-C-F-
We find that the Petitioner has not established that it is a cooperative. That is, the Petitioner has not 
sufficiently demonstrated that the contracts' provisions for collaboration and shared resources 
amount to shared control or ownership. For example, on appeal, the Petitioner states that the 
University and the Petitioner share a "common vested interest in addressing the training needs and 
shortage of primary care physicians for rural and underserved populations." However, there is 
insufficient information regarding how much or what percentage each party contributes, and each 
party's role, responsibilities, and authority, to establish shared ownership or control. The Petitioner 
has not sufficiently explained how these aspects demonstrate shared ownership or control. 
On appeal, the Petitioner states that the evidence demonstrates a "long standing affiliation and business 
arrangement which rises to the level of attachment." However, upon review of the affiliation 
agreement and the program letters, we note that they were entered into between 2014 and 2016 and 
thus, do not indicate a "long standing affiliation." The Petitioner also stated that the program letters 
are valid for a period of 5 years, but there is insufficient evidence to substantiate that the University 
and the Petitioner will continue this program for the entire period. In addition, there is no further 
evidence in the record that shows how these programs are actually utilized. Therefore, the nature of 
the relationship between the University and the Petitioner is not sufficiently demonstrated. 
On appeal, the Petitioner also asserts that the University "retains significant control over the faculty 
appointment process." As noted above, this joint control is limited to a very small scope of approving 
faculty for the specific clinical rotation program. Further, we do not have sufficient information as to 
how many faculty members are selected through this process or even whether the program is active. 
The Petitioner also submitted program letters of agreement for graduate medical education ofiered to 
the Petitioner's staff with certain University departments. The letters stated that the "educational 
program covered by this agreement will consist of the rotation of Family Medicine Residents 
through the Participating Group's respective academic and/or clinical practice setting." Again, the 
letters indicate a medical study program offered to participants from the Petitioner but does not 
provide any evidence that the program is established and running, or specific details of how the 
'program works. A petitioner's unsupported statements are of very limited weight and normally will 
be insufficient to carry its burden of proof, particularly when supporting documentary evidence 
would reasonably be available. See Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
On appeal, the Petitioner cites a decision from the Board of Alien Labor Certification Appeals 
(BALCA), Matter of Children's Hospital Corporation, 20 11-PER-0 1338 (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. 
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(b)(6)
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Matter ofC-M-C-F-
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. In the current petition, the affiliation agreement was signed on July 17, 
2014, only 2 years prior to filing the petition. In addition, the program letters are mostly all from 
2016 with one letter from 2014. Thus, the current Petition does not provide evidence of the same 
consistent collaboration evidenced the BALCA decision. Further, in the BALCA decision, the 
entities formed a standing committee consisting of representatives of Harvard University and the 
teaching hospitals which was responsible for making plans and recommendations to the medical 
school. In addition, an executive committee was created consisting of the heads of each of the 
medical school departments at the teaching hospitals to review common problems. In the current 
petition, the agreement indicated ~ shared cooperation in delegating faculty appointments; thus, the 
cooperation is very specific to this one program. The Petitioner has not demonstrated the same level 
of collaboration and history with the University as seen in the BALCA decision. 
In addition, in the· cited case, both entities held itself out to be in an affiliate 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 stated that the 
University website indicated the relationship with the Petitioner. However, upon review of the 
website page submitted by the Petitioner, it only stated that the ' 
also established in 2008, enables resident physicians to gain 24 months of hands-on experience in a 
rural clinic in Alabama." Thus, the University website does not specifically name the 
Petitioner. This differs from the cited case whereby the affiliate 
relationship was listed on the 
University letterhead and the parties both utilized emails with the ".edu" suffix. 
Upon review of the record of proceedings, and as discussed above, the Petitioner did not submit 
sufficient documentation to establish that it is "related or affiliated with" an institution of higher 
learning. Overall, the Petitioner has not demonstrated that the Petitioner and the University have 
shared ownership or control, such that the Petitioner can be considered "related or affiliated with" an 
institution ofhigher learning. 
Moreover, on appeal, the Petitioner states that alternatively, it qualifies as a cap exempt institution of 
higher education as a non-profit graduate training program accredited by a nationally recognized 
accrediting agency under 20 U.S.C. § 1001(a) and (b). However, section 214(g)(5)(A) of Act 
specifically states that the cap does not apply to individuals "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))." Therefore, for purposes ofH-lB cap exemption only 
20 U.S.C. § 100l{a) definition of institution of higher education applies. Here, the Petitioner has not 
established that it meets all five criteria under 20 U.S;C. § l001(a). 
Finally, on appeal, t11e Petitioner cites to a policy memorandum from April 28, 2011, entitled 
"Additional Guidance to the Field on Giving Deference to Prior Determination of H~ 1 B Cap 
Exemption Based on Affiliation," and states that Director partially based the denial on the 
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Matter ofC-M-C-F-
Petitioner's failure to provide evidence of prior cap exempt approvals. The Petitioner notes that 
USCIS guidance calls only for deference to prior H-1 B cap exemption determinations, but does not 
require the Petitioner to "show prior cap exempt approvals or that a denial is automatic in the 
absence of such prior approvals." In the decision, the Director simply noted that the Petitioner did 
not provide evidence of prior cap approvals and thus, does not qualify under this section of the 
USCIS guidance. Instead, the Director evaluated eligibility of cap exemption based on the current 
petition. However, as discussed above, the Petitioner did not sufficiently establish the requirements 
for a cap exemption. 
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. Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-M-C-F-, ID# 152333 (AAO Jan. 19, 2017) 
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