dismissed H-1B Case: Not Specified

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 04, 2023 In Re: 28600017 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to employ the Beneficiary 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 of the Nebraska Service Center denied the petition, concluding the record did not 
establish that that the Petitioner and the Beneficiary were exempt from the H-lB numerical limitations 
contained at section 214(g)(5)(C) of the Act. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations. See section 10l(a)(l5)(H)(i)(b) of the Act. H-lB visas are numerically limited, 
or "capped," to 65,000 per fiscal year pursuant to section 214(g)(l)(A) of the Act, 8 U.S.C. 
§ l 184(g)(l)(A). An additional 20,000 visas are exempted from the regular 65,000 allotment for H­
lB petitions filed on behalf of beneficiaries holding a U.S. master's degree. Section 214(g)(5)(C) of 
the Act, 8 U.S.C. § 1184(g)(5)(C).1 
1 The statute and regulations provide for other exemptions from the "cap" in limited circumstances. See section 214(g)(5) 
of the Act, 8 U.S.C. § l 184(g)(5); section 214(1) of the Act, 8 U.S.C. § 1184(1) (exempting physicians who have received 
a waiver of their home residency requirement under section 212(e) of the Act, 8 U.S.C. § l 182(e), upon a request by an 
interested federal or state agency); 8 C.F.R. § 214.2(h)(8)(ii)(A) (exempting beneficiaries already counted towards the 
"cap" from counting again for petition extensions and extension of stay). 
For a beneficiary to be eligible for exemption under the master's cap, their degree must have been 
issued by a "United States institution of higher education." Id. Section l0l(a) of the Higher Education 
ACT, 20 U.S.C. § l00l(a), states the following: 
(a) Institution of higher education. For purposes of this chapter, other than subchapter 
IV, the term "institution of higher education" means 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, or person who meet the 
requirements of section 1091 ( d) of this title; 
(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 20year program that is 
acceptable for full credit toward such a degree, or awards a degree that I 
acceptable for admission to a graduate or professional degree program, 
subject to review and approval by the Secretary; 
(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 period of time. 
II. ANALYSIS 
The Petitioner did not assert, either in response to the Director's notice of intent to deny (NOID) or 
this appeal, that its petition was exempt from the H-lB numerical limitations under section 214(g) of 
the Act. The Petitioner essentially conceded that the Beneficiary's education would not have qualified 
its petition for one of the 20,000 visas exempted for individuals who have earned U.S. master or higher 
degrees. 2 The Petitioner also does not claim any other exemption from the H-1 B numerical 
limitations. Instead the Petitioner's appeal, which is substantively identical to its response to the 
I 2 The ~liege of Technology and Commerce I I conferred a U.S. master's or higher degree to the 
Beneficiary. was not a "United States 
I 
institution of higher education" under the applicable regulations because it 
was not a public or other nonprofit institution. lceased operations in December 2017, the same year they conferred 
a U.S. master's or higher degree to the Beneficiary. Shortly beforel lerminated their operations, Accrediting Council 
for Independent Colleges and Schools (ACICS) had declined to continue I I accreditation. The U.S. Department of 
Education (DOE) terminated recognition of ACICS' accreditation of independent colleges and schools on August 19, 2022. 
2 
Director's NOID, emphasizes equitable considerations to encourage us to continue "processing of this 
petition on a NUNC PRO TUNC basis." The Petitioner further contended that the discovery of the 
Petitioner and Beneficiary's ineligibility for cap exemption many years after the grossly erroneous 
approval of its initial H-1 B petition forestalled it from any corrective action now and lost opportunities 
for corrective action in the past. The Petitioner does not cite to any statute, regulation, or policy which 
confers to us the authority to continue "processing of this petition on a NUNC PRO TUNC basis." 
Whilst the regulations do permit consideration of an exercise of discretion to extend a non-citizen's 
stay notwithstanding expiration of status, that is not the issue in this matter. 3 The issue here is the 
Petitioner or Beneficiary's eligibility for an exemption from the H-lB category's numerical 
limitations. And, as stated earlier, the Petitioner has not demonstrated eligibility for any exemption 
from the H-lB category's numerical limitations. The sum of the Petitioner's assertions apparently 
demand that we continue to extend an immigration benefit despite clear statutory and regulatory 
ineligibility. We do not have the statutory or regulatory authority to do so. 
There is also no time-bar to our discovery of prior ineligibility in the regulations. We have the 
authority to identify previous ineligibility and correct it through our decisions. See 8 C.F.R. 
§ 214.2(h)(8)(ii)(C) ("[p]etitions received after the total numbers available in a fiscal year are used 
stating that the alien beneficiaries are exempt from the numerical limitation will be denied .. .ifUSCIS 
later determines that such beneficiaries are subject to the numerical limitation"). USCIS is not required 
to approve petitions where eligibility has not been demonstrated merely because of erroneous prior 
approvals. See Matter ofChurch Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988). 
III. CONCLUSION 
At the time the Petitioner filed the petition, USCIS had announced that the H-1 B numerical limit for 
fiscal year 2022 had already been reached. 4 So this petition would have to demonstrate exemption 
from the "cap" in order to be approvable. The Petitioner has not shown that any exemption from the 
"cap" applies to it or the Beneficiary. 
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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
3 In any event, our authority to adjudicate appeals is delegated by the Secretary of the Depa1iment of Homeland Security 
(DHS) pursuant to the authority vested in the Secretary through the Homeland Security Act of 2002, Pub. L. 107-296. See 
DHS Delegation Number 0150.1 (effective Mar. 1, 2003); see also 8 C.F.R. § 2.1 (2003). The regulations limit our 
jurisdiction over petitions for temporary workers to those described under 8 C.F.R. §§ 214.2 and 214.6. There is no 
provision in the regulations for an appeal from a denial of an extension of stay request. See 8 CFR § § 214.1 ( c )(5), 248.3(g). 
4 USCIS Reaches FY 2022 H-lB Regular Cap, https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2022-h­
l b-cap#:-:text=USCIS%20has%20received%20a%20sufficient,fiscal%20year%20(FY)%202022. 
3