dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 7906370 
Appeal of Nebraska Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "senior software developer" 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 Director of the Nebraska Service Center denied the petition in accordance with 
8 C.F.R. § 214.2(h)(8)(ii)(B), concluding that the evidence of record did not establish that the 
Beneficiary was eligible for the cap exemption under the provisions specified in section 214(g)(5)(C) 
and 214(g)(7) of the Act. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Pursuant to section 214(g)(l)(A) of the Act, the total number of H-lB visas issued per fiscal year may 
not exceed 65,000. This numerical cap on H-lB visas is commonly referred to as the "H-lB cap." In 
addition, section 214(g)(5)(c) of the Act provides that "[t]he [H-lB] numerical limitations ... shall 
not apply to any nonimmigrant alien issued a[n H-lB] visa or otherwise provided [H-lB status] who 
.. . has earned a master's or higher degree from a United States institution of higher education (as 
defined in section l0l(a) of the Higher Education Act of 1965 (20 U.S.C. lO0l(a)), until the number 
of aliens who are exempted from such numerical limitation during such year exceeds 20,000." This 
is commonly referred to as the "master's cap." 
An "institution of higher education" is defined, in pertinent part, as an educational institution in any 
State that is a public or other nonprofit institution. 2 The institution must have qualified as a "United 
States institution of higher education" at the time the beneficiary's degree was earned. 3 
1 We follow the preponderance of the evidence standard. Matter of Chawathe, 25 I&N Dec . 369, 375-76 (AAO 20 I 0). 
2 20 U.S .C. § l00l(a) (2012) (originally enacted as the Higher Education Act of 1965, Pub . L. No . 89-329 , 79 Stat. 1219) 
("Higher Education Act") ( emphasis added). 
3 See Matter of A-T-Inc., Adopted Decision 2017-04 (AAO May 23, 2017) . 
The regulation at 8 C.F.R. § 214.2(h)(8)(ii)(D) states that petitions indicating they are exempt from 
the H-lB cap, but are later determined by U.S. Citizenship and Immigration Services (USCIS) after 
the final receipt date to be subject to the H-lB cap, will be denied and filing fees will not be returned 
or refunded. The "final receipt date" is when USCIS notifies the public that it has received a sufficient 
number of petitions to reach the H-lB cap. The "determination date" for a beneficiary's cap 
exemption is the date on which USCIS articulates its adjudication in a decision properly served upon 
a petitioner. See 8 C.F.R. §§ 103.2(b)(19), 103.3(a)(l)(i), and 103.8(a). 
II. ANALYSIS 
The Petitioner stated in its initial petition ~ .... _______ _,~ that the Beneficiary was exempt from 
the numerical cap under section 214(g)(5)(C) because the Beneficiary holds a master's degree from 
I I University. This initial petition was approved on June 23, 2012 under this numerical 
exemption, meaning that the Beneficiary was never counted in the numerical cap for that fiscal year, 
but rather qualified for the master's cap exemption. The Petitioner filed the instant petition to extend 
the stay of the Beneficiary so that he may complete any remaining portion of the six-year period 
authorized under H-lB provisions. 
Both in its notice of intent to deny (NOID) and its final decision, the Director notified the Petitioner 
that I I University did not qualify as an institution of higher education as defined in 20 U.S.C. 
§ 100l(a) 4 and that insufficient evidence had been submitted to establish that the Beneficiary qualified 
for cap exempt status under section 214(g)(5)(C). In response to the NOID, the Petitioner did not 
provide any additional evidence to establish the Beneficiary qualified for master's cap exempt status 
or thatl !University qualified under lO0l(a) at the time of the initial petition's filing. The 
Petitioner does not contest the Director's conclusion that the original H-1 B petition did not qualify for 
the master's cap exemption. Nor does the Petitioner contend thatl !University is a public or 
other nonprofit institution, or that it otherwise meets the definition of a United States "institution of 
higher education," to qualify the Beneficiary for the master's cap exemption under section 
214(g)(5)(C) of the Act. Accordingly, the Director denied the instant petition, stating that the 
Beneficiary is not eligible for the cap exemption under the requirements specified in the INA related 
to extensions. We agree with the Director's conclusion thai !University does not meet the 
definition of a United States "institution of higher education." As such, we conclude that the 
Beneficiary did not earn his degree from an "institution of higher education," and that he was not 
eligible for the master's cap exemption he received in 2012. The Director further stated that, "[b ]ased 
on the requested employment start date, the [B]eneficiary would be subject to the [fiscal year] 2013 
numerical limitation. However, [the Petitioner] filed this petition after the final receipt date of the 
[fiscal year] 2013 CAP, which had been closed on June 11, 2012." 
On appeal and in response to the Director's NOID, the Petitioner asserts that when the initial H-lB 
petition had been approved, the Petitioner was not aware that I !University did not qualify as 
an institution of higher education. Moreover, the Petitioner argues that the initial H-lB petition had 
been filed under a good faith belief that I !University did qualify and that absent fraud or willful 
41 !University is a private, for-profit institution according to the National Center for Education Statistics, College 
Navigator, https://nces.ed.gov/collegenavigator/?.__ ____________ _. (last visited Feb. 12, 2020). 
Therefore, I !University does not meet the definition of an institution of higher education because it does not meet 
all the criteria listed in 20 U.S.C. § lO0l(a), as required. 
2 
misrepresentation on the part of the Petitioner or Beneficiary, the instant petition warrants an exercise 
of our favorable discretion under 8 C.F.R § 214.1 ( c )( 4). As part of its argument for the favorable 
exercise of discretion in this matter, the Petitioner states that not granting the petition would cause 
unusual hardship to the Beneficiary. 
First, we will address the Petitioner's argument concerning fraud and willful misrepresentation. The 
Petitioner uses language from section 214(g)(3) and argues that because the Director made no finding 
of fraud or willful misrepresentation, as well as because the Petitioner and Beneficiary acted in good 
faith, the instant H-lB petition and associated visa number should not be revoked. However, the 
Petitioner misunderstands the reasons for the Director's denial. Though the Director's decision cites 
section 214(g)(3) insofar as it states that numerical limitations exist and that petitions may be revoked 
regardless of the fiscal year in which they were approved, the instant petition fails under section 
214(g)(5)(C) of the Act. 
As previously discussed, the Beneficiary was never counted toward the numerical cap and was 
classified as "cap exempt" due to his master's degree. Therefore, provisions under paragraph (3) 
concerning aliens who are subject to and have been counted against the numerical limitations of 
paragraph (1) do not address the underlying issue in the instant matter. If the Beneficiary had been 
counted in the cap when the initial petition was granted, and then later it was discovered that the 
Beneficiary had been granted such status by fraud or willful misrepresentation, the instant petition 
might well be revoked under paragraph (3). However, the initial petition was granted under paragraph 
(5)(C) as a master's degree cap exemption. Accordingly, we make no finding or conclusion as to 
whether fraud or willful misrepresentation exists in this case, nor do we need to reach such a 
conclusion. Rather, we conclude that the Petitioner has not provided sufficient evidence to establish 
that the Beneficiary was ever counted in the relevant fiscal year's cap or that he qualifies for an 
exemption to the cap requirement. 
We next address the Petitioner's request for a favorable exercise of discretion under 
8 C.F.R § 214.l(c)(4). A plain reading of the regulation indicates that it pertains to timeliness and the 
maintenance of nonimmigrant status. We note that the instant petition and appeal do not involve 
timeliness or the maintenance of nonimmigrant status, but rather eligibility for the benefit sought. The 
Petitioner requests that we use discretion to overlook the statutory and regulatory requirements of the 
H-1 B visa classification. 
While discretion may be available to cure delays that were beyond the control of the applicant, 
8 C.F.R § 214.l(c)(4) does not allow us to exercise discretion to grant benefits to applicants who are 
not otherwise qualified. The Petitioner's reliance on this provision, therefore, is misplaced. As 
discussed, the Petitioner has not established that the Beneficiary was ever counted in the relevant fiscal 
year's cap or that, in the alternative, he qualifies for cap exempt status. Because the instant petition 
was determined after both the fiscal year 2019 H-lB and master's cap were exhausted, there is no cap 
number available for the Beneficiary in accordance with 8 C.F.R. § 214.2(h)(8)(ii)(D). 5 
5 As noted earlier, this regulation mandates the denial of petitions indicating that they are exempt from the numerical 
limitation, but that are later determined by USCTS to be subject to the numerical limit. The fiscal year 2019 cap exemptions 
were exhausted on April 6, 2018. The Beneficiary's cap exemption was "determined" on July 5, 2019, which was the date 
on which the Director articulated its adjudication in the denial decision. See 8 C.F.R. §§ 103.2(b)(19), 103.3(a)(l)(i), and 
103.8(a). 
3 
Lastly, we turn to the Petitioner's argument that the Beneficiary will suffer unusual hardship if the 
instant petition is denied and he is forced to leave his employment and the United States. In this 
matter, we must acknowledge that according to 8 C.F.R. § 103.2(a)(3), a beneficiary of a visa petition 
is not a recognized party in a proceeding. In fact, the regulation at 8 C.F.R. § 103.3(a)(l)(iii)(b) 
specifically states that a beneficiary of a visa petition is not an affected party and does not have any 
legal standing in a proceeding. Moreover, as stated in the Director's decision, when prior approvals 
have been in error, USCIS is not required to continue to approve petitions where eligibility has not 
been demonstrated. 6 Any possible hardship to either the Petitioner or the Beneficiary cannot override 
evidentiary deficiencies concerning eligibility. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is a 
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. 
6 See Matter of Khan, 14 l&N Dec 397 (BIA 1973); see also Matter of M-, 4 l&N Dec 532 (BIA 1951; BIA A.G. 1952). 
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