dismissed H-1B Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-G-G-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 16,2016 
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 "clinical nurse specialist" 
under the H-1B 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-1B program allows 
a U.S. employer to temponirily employ a qualified individual 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 
evidence of record does not establish that the Beneficiary qualifies for an exemption from the Fiscal 
Year 2016 (FY16) H-1B 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 letter and additional 
evidence, asserting that the Director's finding was erroneous. 
Upon de novo review, we will dismiss the appeal. 
I. H-1B CAP EXEMPTION 
A. Legal Framework 
In general, H-1B visas are numerically capped by statute. Pursuant to section 214(g)(1)(A) of the 
Act, 8 U.S.C. § 1184(g)(l)(A), the total number ofH-1B 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 of2000 (AC21), Pub. L. No. 106-313 (Oct. 17, 2000), states, in relevant part, that the 
1 
U.S. Citizenship and Immigration Services (USCIS) announced that the H-1 B cap for FY 16 was reached on April 7, 
2015. 
Matter of M-G-G-H-
H-1 B 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. 1001(a))), or a related or affiliated nonprofit entity .... " 
For purposes of H-1B cap exemption f<;>r an institution of higher education, or a related or affiliated 
nonprofit entity, the H-1 B regulations adopt the definition of institution of higher 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-G-G-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, defines what is a related 
or affiliated nonprofit entity specifically for purposes of the H-1 B 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 law 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 U.S. Citizenship and Immigration Services (USC IS) 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: 
( J) 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 USCJS Policy Memorandum PM-602-0037, Additional Guidance to the Field on Giving Deference to Prior 
Determinations of H-IB Cap Exemption Based on A.ffiliation (Apr. 28, 2011), 
https://www.uscis.gov/sites/defaultlfiles/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, USCIS, HQPRD 70/23.12, Guidance Regarding Eligibility for Exemption 
from the H-JB Cap' Based on §/03 ofthe American Competitiveness in the Twenty-First Century Act of2000 (AC21) 
(Public Law I 06-313) (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)( 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 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, II 0-11 (proposed Dec. 20, 2000) (to be 
codified at 20 C.F.R. pts. 655-56). 
3 
(b)(6)
Matter of M-G-G-H-
B. Factual Background 
At "Section 2. Fee Exemption and/or Determination" of the Form I-129, H~IB and H-IBl Data 
Collection and Filing Fee Exemption Supplement, the Petitioner checked the box for "Yes" in 
response to the question, "Are you a nonprofit entity engaged in an established curriculum-related 
clinical training of students registered at such an institution?" organization or 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)?" 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 lOl(a) ofthe Higher Education Act of 1965, 20 U.S.C. lOOl(a)." 
In a letter of support accompanying the petition, the Petitioner claimed to be a district hospital 
owned by Nevada, with a gross revenue of $9.43 million for 2011. It seeks to 
employ the Beneficiary as a clinical nurse specialist as part of its clinical care internship program 
with The Petitioner submitted a copy of its Clinical Preceptorship 
Agreement (CPA) with which indicated that it would "provide clinical care experience for 
. students enrolled in the Physician Assistant Program (Master Degree level), Nursing and 
Physical Therapy Program (Doctoral Degree level); Nursing, Occupational Therapy, and Education 
Program {Master Degree level), and Nursing Program (Bachelor Degree level)." 
In response to the Director's request for evidence (RFE) and again on appeal, the Petitioner relies on 
several of our unpublished decisions, as well as a June 2006 USCIS memo from Michael Aytes, 
Associate Director for Domestic Operations (Aytes Memo ),4 in support of the assertion that the 
Petitioner is a nonprofit entity related to or affiliated with an institution of higher education. 
Specifically, the Petitioner asserts that Example 2 on page 7-8 of the Aytes Memo is sufficiently 
similar to the instant case to demonstrate that the instant visa petition should be approved. 
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)(19)(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 
does not expressly claim that it shares the same board or federation with this institution, either. 
4 See Memorandum from Michael Aytes, Associate Director for Domestic Operations , USCIS, HQPRD 70/23.12, 
Guidance Regarding Eligibility for Exemption from the H-1 B Cap Based on §I 03 of the American Competitiveness in 
the Twenty-First Century Act o.f2000 (AC21) (Public Law 106-313) (June 6, 2006) . 
4 
(b)(6)
Matter of M-G-G-H-
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 of8 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 "district hospital owned by 
Nevada. " Nor does the Petitioner claim that it is operated by an institution of higher 
education. Finally, while may send students to participate in the Petitioner's clinical care 
internship program, it cannot be inferred from associations of such a limited scope that the Petitioner 
is being operated by Accordingly, we find that the Petitioner has not met the second prong of 
8 C.F.R. § 214.2(h)(19)(iii)(B). 
Third and finally, 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 subsidiar y. 
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). It is evident from the foregoing discussion of the evidence that the Petitioner , a 
hospital, is not attached to an institution of higher education in a manner consistent with these terms. 
There is no probative evidence submitted 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 at 212, 384, 1565 (9th Ed. 2009) (defining the terms branch, cooperative , and 
subsidiary); see also Webster's New Colleg e Dictionary at 699 (3rd Ed. 2008) (defining the term 
member). 
The Petitioner asserts that it has an affiliation with and submits a copy of the CPA between the 
parties. However, the Petitioner has .not identified and explained which provisions within this 
agreement establish some ty
pe of shared ownership and/or control. lnstead , we find that this 
agreement is very limited in scope. Essentially , it contains terms pursuant to which students from 
may gain clinical experience at the Petitioner 's facilities . The Petitioner provides the students 
with access to its facilities and clinical staff supervision, but maintains control, authority , and 
responsibility for the educational programs which are the subject of the agreement. Specifically , the 
CPA states that shall "maintain all personnel and academic records of the students" and 
"enforce rules and regulations governing the students that are mutually agreed upon by and 
[the Petitioner]." 
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 
5 
(b)(6)
Matter of M-G-G-H-
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. 
As a final matter, with respect to the Petitioner's reference to our prior unpublished decisions, we 
find that there is insufficient evidence in the record of proceedings to establish that the facts of the 
instant petition are analogous to those in the unpublished decisions . Specifically, the Petitioner 
· provides vague references to three of our prior decision in a footnote, but does not provide copies of 
those decisions such that we could review and evaluate them in connection with the facts of this 
case. The final decision , of which a copy was submitted, involved a non-profit school district that 
operated an alternative teacher certification program in collaboration with a qualifying institution of 
higher education, and is not analogous to the instant case. Regardless, it should be noted that 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 . 
In addition, the facts of Example 2 from the Aytes Memo, are similarly not analogous to the instant 
case. Specifically, the Petitioner provides no evidence that the Petitioner will directly and . . 
predominantly will further the normal, primary , or essential purpose , mission, objectives, or function 
of 
II. BENEFICIARY'S QUALIFICATIONS 
Beyond the decision of the Director, we find that, even if the Petitioner had demonstrated exemption 
from the FY 16 cap, the petition could not be approved because the Beneficiary is not qualified to 
perform the duties of a clinical nurse specialist in the State of Nevada. 
Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an individual applying for 
classification as an H -1 B nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states 
that a beneficiary must also meet one of the following criteria in order to qualify to perform services 
in a specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
6 
• 
Matter of M-G-G-H-
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately engaged 
in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and have recognition of expertise in 
the specialty through progressively responsible positions directly related to the 
specialty. 
The Petitioner seeks to employ the Beneficiary as a clinical nurse specialist in the State ofNevada, 
and claims she is qualified to perform the duties of the proffered position by virtue of her possession 
of the U.S. equivalent to a bachelor's degree in nursing. In support of this assertion, the Petitioner 
submitted an evaluation of the Beneficiary's foreign academic credentials prepared by the Trustforte 
Corporation stating that the Beneficiary possesses the equivalent of a U.S. bachelor's degree in 
nursmg. · 
However, a review of the Nevada Administrative Code (NAC) states the following requirements for 
clinical nurse specialists: 
A nurse using the title "clinical nurse specialist'': 
1. Must: 
(a) Be licensed to practice nursing as a registered nurse in this State; 
(b) Have a master's or doctorate degree innursing; and 
(c) Be educated in an area of clinical specialty by completing a program designed 
to prepare clinical nurse specialists. 
Nev. Admin. Code § 632.300. 
Here, the Beneficiary has satisfied none of the prerequisites for employment as a clinical nurse 
specialist in the State of Nevada. While we note the Petitioner's acknowledgement that the 
Beneficiary does not possess the requisite nursing license due to her lack of a U.S. social security 
number, there are two other impediments to the Beneficiary's satisfaction of State requirements. In 
addition to not possessing a U.S. master's or doctorate degree in nursing, or its foreign equivalent, 
the record contains no evidence establishing that the Beneficiary has been educated in an area of 
clinical specialty by completing a program designed to prepare clinical nurse specialists. 
7 
Matter of M-G-G-H~ 
The Petitioner has not established that the Beneficiary is qualified to perform services in a specialty 
occupation. For this additional reason, the Petition may not be approved. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent an<;l alternative basis for the decision. 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-G-G-H-, ID# 72355 (AAO Nov. 16, 2016) 
8