dismissed H-1B Case: Mental Health

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 25,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a non-profit disability services provider, seeks to employ the Beneficiary as a 
"Psychosocial Rehabilitation [Qualified Mental Health Professional]" under the H -1 B nonimmigrant 
classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, California Service Center, denied the petition. The matter is 
now before us on appeal. Upon de novo review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the Petitioner has established that it is exempt from the numerical cap 
on H -1 B petitions pursuant to section 214(g)( 5) of the Act. 
II. EXEMPTION FROM THE H-1B CAP 
A. Legal Framework 
In general, H-1B visas are numerically capped by statute. Section 214(g)(5)(A) of the Act, as 
modified by the American Competitiveness in the Twenty-first Century Act (AC21), Pub. L. No. 
106-313 (October 17, 2000), states, in relevant part, that the H-1B cap shall not apply to any 
nonimmigrant alien 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 101(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 -1 B cap exemption for 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 1 01 (a) of the Higher Education Act 
of 1965, (Pub. Law 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; 
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(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. 
The governing statute, 8 U.S.C. § 1184(g)(5)(A), contains no definitions for determining if an 
employer qualifies as a "related or affiliated nonprofit entity" of an institution of higher education 
under 20 U.S.C. § 1001(a). 
U.S. Citizenship and Immigration Services (USCIS) provided guidance on this subject in a June 
2006 memo from Michael Aytes, Associate Director for Domestic Operations, U.S. Citizenship and 
Immigration Services, U.S. Department of Homeland Security, to Regional Directors and Service 
Center Directors, Guidance Regarding Eligibility.for Exemption from the H-1B Cap Based on §103 
of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-
313) HQPRD 70/23.12 (June 6, 2006) (hereinafter referred to as "Aytes Memo"). According to 
users policy, the definition of related or affiliated nonprofit entity that should be applied in this 
instance is that found at 8 C.F.R. § 214.2(h)(19)(iii)(B). See Aytes Memo at 4 ("[T]he H-1B 
regulations define what is an affiliated nonprofit entity for purposes of the H-1B fee exemption. 
Adjudicators should apply the same definitions to determine whether an entity qualifies as an 
affiliated nonprofit entities [sic] for purposes of exemption from the H -1 B cap"). 
Title 8 C.F.R. § 214.2(h)(19)(iii)(B), which was promulgated in connection with the enactment of 
ACWIA, 1 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 
1 Enacted as Title IV of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 
1999, Pub. L. No. 105-277, 112 Stat. 2681,2681-641. 
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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 the American 
Competitiveness in the Twenty-first Century Act (AC21), Pub. L. No. 106-313 (October 17, 2000), 
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 ofthe enactment of AC21: the definition found at 8 C.F.R. § 214.2(h)(19)(iii)(B). As such, we 
find that USCIS reasonably interpreted AC21 to apply the definition of the phrase found at 8 C.F .R. 
§ 214.2(h)(19)(iii)(B), and we will defer to the Aytes Memo in making our determination on this 
issue. Moreover, we note that this office defers to the USCIS Senior Policy Council to prescribe 
agency policy. See Policy Memorandum issued by Ron Rosenberg, Chief, Administrative Appeals 
Office, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, 
Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO) PM-602-
0086.1 (November 18, 2013). In the absence of statutory or regulatory authority specifying a 
different interpretation, we reiterate that we will defer to the Aytes Memo in _making our 
determination on the cap issue. 
The Petitioner must, therefore, establish that the Beneficiary will be employed "at" an entity that 
satisfies the definition at 8 C.F.R. § 214.2(h)(19)(iii)(B) as a related or affiliated nonprofit entity of 
an institution of higher education under section 214(g)(5)(A) of the Act in order for the Beneficiary 
to be exempt from the H-1B cap. Reducing the provision to its essential elements, we find that 
8 C.F .R. § 214(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: 
(1) The petitioner is associated with an institution of higher education through 
shared ownership or control by the same board or federation; 
(2) The petitioner is operated by an institution of higher education; or 
(3) The petitioner is attached to an institution of higher education as a member, 
branch, cooperative, or subsidiary.2 
2 This three-part reading is consistent with the Department of Labor's regulation at 20 CFR § 656.40(e)(ii), which is 
identical to 8 CFR § 214.2(h)(l9)(iii)(B) except for an additional comma between the words "federation" and 
"operated." The Department of Labor explains in the supplementary information to its American Competitiveness and 
Workforce Improvement Act of 1998 (ACWIA) regulations that it consulted with the former Immigration and 
Naturalization Service (INS) on the issue, supporting the conclusion that the definitions were intended to be identical. 
See 65 Fed. Reg. 80 II 0, 80181 (December 20, 2000). 
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B. Factual and Procedural History 
The petition was filed for an employment period to commence in July 2015. The 2015 fiscal year 
(FY15) extends from October 1, 2014, through September 30, 2015. The instant petition is therefore 
subject to the 2015 H-1B cap, unless exempt. Further, on April 7, 2014, USCIS issued a notice that 
it had received sufficient numbers ofH-1B petitions to reach the H-1B cap for FY15. The Petitioner 
filed the instant visa petition on July 9, 2015. Thus, unless this visa petition is exempt from the cap, 
it cannot be approved. 
At Section 3: Numerical Limitation Information, of the H Classification Supplement to Form I-129 
at Page 20, the Petitioner checked box d, indicating that it is "CAP Exempt." Also in Section 3, to 
explain why the Petitioner believes that the instant visa petition is exempt, the Petitioner checked 
box 3.b., indicating that the Petitioner is a nonprofit entity related to or affiliated with an institution 
of higher education as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 
1001 (a). The Petitioner did not claim any other exemption from the cap. 
With the visa petition, the Petitioner provided a letter, dated June 30, 2015, which states: "[The 
Petitioner] has an affiliation agreement with 
, an accredited, non-profit institute of higher education as defined by 20 USC 
§ 1 0019a) .... " The Petitioner also provided a document titled, "Affiliation Agreement." In it, the 
Petitioner and agree that the Petitioner will host students to provide clinical 
expenence. 
The Petitioner provided evidence of other agreements between it and 
those agreements, would provide externs from either or 
Pursuant to one of 
to 
the Petitioner. A sub-contract agreement states that agrees to provide an extern and 
to provide clinical services to the Petitioner. 
A letter, dated August 11, 2015, from an associate professor of 
psychology at and its director of clinical training, confirms that the Petitioner has a "long­
standing and important training relationship" with 
In response to the Director's request for evidence, the Petitioner submitted, inter alia, a letter, dated 
August 4, 2015, in which it noted that the Petitioner's internship program is managed by a board of 
Director's consisting of employees of both the Petitioner and 
The Petitioner also provided a letter dated August 12, 2015, in which it stated that the Petitioner and 
have jointly managed the Petitioner's internship program for 15 years and work in close 
collaboration on every part of the program. That letter also cites the Aytes memo, asserting that the 
third example on page 8 of that memo is sufficiently similar to the instant case to demonstrate that 
the instant visa petition should be approved. 
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Matter ofN-R-
The Director denied the petition based upon her finding that approval of the instant visa petition is 
barred by the FY15 H-lB cap. On appeal, the Petitioner it reiterates its view that it is affiliated with 
an institution of higher education and therefore not subject to the cap and that the evidence of record 
is sufficient to warrant approval of the instant petition. The Petitioner also cites two of our non­
precedent decisions, the facts of which it implies are sufficiently similar to mandate approval of the 
instant petition. 
C. Discussion 
Upon review of the entire record of proceedings, we find that the Petitioner has not demonstrated 
that it is a nonprofit entity that is related to or affiliated with an institution of higher education. 
The Affiliation Agreement sets out terms pursuant to which will send its students 
to work in internships at the Petitioner's facility. Other documents indicate that will, for 
a fee, provide externs who are students at either or 
Turning to the definition of an "affiliated or related nonprofit entity," we must 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 by the same board or federation. Upon 
review, the record of proceedings does not establish that the Petitioner and or 
are owned or controlled by the same boards or federations. Consequently, the Petitioner 
has not met the first prong of 8 C.F.R. § 214.2(h)(19)(iii)(B). 
Second, we must 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 show that an institution of 
higher education operates the Petitioner within the common meaning of this term. As depicted in the 
record, the relationship that exists between the Petitioner and is one between two separately 
controlled and operated entities. The record also does not demonstrate that the Petitioner is operated 
by Accordingly, the Petitioner has not met the second prong of 8 C.F.R. 
§ 214.2(h)(19)(iii)(B). 
Third and finally, we must 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 the 
supplementary information to the interim regulation now found at 8 C.F.R. § 214.2(h)(19)(iii)(B), 
the former INS stated that it drafted the regulation "drawing on generally accepted definitions" of 
the terms. See 63 Fed. Reg. 65657, 65658 (Nov. 30, 1998). It is evident from the foregoing 
discussion of the evidence that the Petitioner, when viewed as a single entity, is not attached to an 
institution of higher education in a manner consistent with these terms. There is insufficient 
evidence that the Petitioner is a member, branch, cooperative, or subsidiary of or 
All four of these terms indicate at a bare minimum some type of shared ownership 
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Matter ofN-R-
and/or control, which has not been presented in this matter. See generally Black's Law Dictionary 
(lOth ed. 2014) (defining the terms member, branch, cooperative, and subsidiary). 
The word "cooperative," as used in this regulation, is not intended to be used as an adjective that 
describes a type of relationship; rather, "cooperative" is intended to be used as a noun that describes 
a type of business arrangement, as evidenced by the other examples provided in the regulation, "a 
member, branch ... or subsidiary." 3 Thus, a memorandum of understanding, affiliation agreement 
or other similar agreement between a nonprofit entity, such as the Petitioner, and a higher 
educational institution, such as or that provides for a jointly operated 
program or project is generally insufficient to establish that the nonprofit entity is attached to the 
higher educational institution as a cooperative. 
As a final matter, with respect to the Petitioner's reference to prior unpublished AAO 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. While 8 C.P.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 evidence does not demonstrate that the Beneficiary will be employed at an entity that satisfies 
the definition at 8 C.P.R. § 214.2(h)(19)(iii)(B) as a related or affiliated nonprofit entity of an 
institution ofhigher education under section 214(g)(5)(A) of the Act. 
III. CONCLUSION 
Upon review of the entire record of proceedings, we find that the Petitioner has not established that it 
is exempt from the PY15 H-IB cap pursuant to section 214(g)(5) of the Act. Accordingly, the 
Director's decision to deny the petition shall not be disturbed. 
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) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-R-, ID# 16213 (AAO Mar. 25, 2016) 
3 This conclusion is consistent with the intent of the ACWIA regulations, where commenters suggested expanding the 
definition of an "affiliate or related non-profit entity" to include cooperative or joint arrangements that do not rise to the 
level of a "cooperative." INS declined to adopt these suggestions, explaining that "such expansive definitions of the 
term 'affiliate or related non-profit entity' would not reflect congressional intent." See 65 Fed. Reg. l 0680 (February 29, 
2000).