dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 7407414 
Appeal of Nebraska Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 31, 2020 
The Petitioner seeks to extend the temporary employment of 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 that the Beneficiary did 
not qualify for the claimed Master's Cap exemption . More specifically, the Director determined that 
the degree-conferring institution was not accredited at the time it awarded the Beneficiary's master's 
degree, and thus the Beneficiary had not earned his degree, as required, from a "United States 
institution of higher education." 
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 nova review, we will dismiss the appeal.' 
I. H-lB CAP EXEMPTION 
A. 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." 
Section 214(g)(5)(C) of the Act exempts up to 20,000 H-lB nonimmigrants who have earned a U.S. 
master's or higher degree from being counted towards the H-lB Cap . This exemption is commonly 
referred to as the "Master's Cap." More specifically, section 214(g)(5) of the Act states: 
The [H-lB] numerical limitations ... shall not apply to any nonimmigrant alien issued 
a[n H-lB] visa or otherwise provided [H-lB status] who-
1 We follow the preponderance of the evidence standard. Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010) . 
(A) is employed ( or has received an offer of employment) at an institution of higher 
education (as defined in section lO0l(a) of Title 20), 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 l0l(a) of the Higher Education Act of 1965 (20 
U.S.C. l00l(a)), until the number of aliens who are exempted from such 
numerical limitation during such year exceeds 20,000. 
An "institution of higher education" is defined 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; or persons 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 2-year program that is acceptable for full credit 
toward such a degree, or awards a degree that is acceptable for admission to a 
graduate or professional degree program, subject to review and approval by the 
[U.S. Secretary of Education]; 
(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 [U.S. Secretary of 
Education] for the granting of preaccreditation status, and the [U.S. Secretary of 
Education] 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. 
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). 
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 sufficient 
numbers of petitions to reach the H-lB Cap. The "determination date" for a beneficiary's cap 
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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)(l9), 103.3(a)(l)(i), and 103.8(a). 
B. Procedural and Factual History 
On April 6, 2018, USCIS issued a notice that it had received sufficient numbers of H-1 B petitions to 
reach the H-1 B cap for fiscal year 2019 (FYI 9). This meant that any cap-subject petitions filed within 
FYI 9 after the announcement date should have been rejected. The Petitioner filed this petition on 
March 13, 2019, for an employment period to commence in FY19. 
The Petitioner marked the Form I-129, H-lB and H-lBl Data Collection and Filing Fee Exemption 
Supplement (Form I-129 Supplement) relating to the instant petition as "CAP exempt" since it was 
requesting an extension of stay for the Beneficiary's current H-1 B classification. Further, the 
Petitioner selected "Master's degree" when indicating the Beneficiary's highest level of education on 
this same form. The Petitioner stated, and the record corroborates, that the Beneficiary earned a Master 
of Science degree in software engineering from thel luniversityD in 
2010. 2 
In denying the petition, the Director determined that the Beneficiary does not qualify for the Master's 
Cap exemption becausec=J was not an accredited institution of higher education at the time the 
Beneficiary's degree was conferred in December 2010. Further, the Director found that there was no 
evidence that the Beneficiary had been counted against the regular H-lB cap in FY14, as asserted by 
the Petitioner. In other words, the Beneficiary's prior H-lB petitions should not have been approved 
because he was never eligible for the Master's Cap. 
C. Analysis 
As a prelimin;rv jatter, we note that the Petitioner does not contest on appeal the Director's 
conclusion tha was not accredited at the time the Beneficiary's master's degree was conferred. 3 
Further, it does not assert that D meets the definition of a United States "institution of higher 
education," in order to qualify the Beneficiary for the Master's Cap exemption under section 
214(g)(5)(C) of the Act. Accordingly, we conclude the Beneficiary did not earn his degree from an 
"institution of higher education," and he is thus ineligible for the Master's Cap exemption. 4 
2 The Petitioner asserts that the Beneficiary's first petition was exempt from the H- lB numerical cap based on his master's 
degree from~The Petitioner then relied on that cap-exempt petition to demonstrate that his subsequent petitions were 
also exempt. 
3 The record contains letters fromD and the.__ __________ __,.-...,.._ ___________ _. 
.__ _________ __, both of which confirm that the effective date of 's accreditation is December 2012, 
two years after the Beneficiary's degree was confened. 
4 On appeal, the Petitioner does not address the primary reason for the denial: that the basis for the Beneficiary's cap 
exempt status derived from a degree conferred by a non-accredited institution, which cannot serve to quality him under 
the master's cap exemption. As a result it has abandoned this issue on appeal. Matter of Zhang, 27 T&N Dec. 569 n.2 
(BIA 2019) (finding that an issue not appealed is deemed as abandoned). A petitioner cannot meet its burden of proof in 
these proceedings when it abandons the main issue on appeal. 
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In addition, the Petitioner provides no evidence to demonstrate that the Beneficiary was approved 
under the regular H-lB Cap as asserted. As mentioned, USCIS records indicate that the FYI 4 petition 
filed on behalf of the Beneficiary was approved under the Master's Cap. We farther note that in 
support of the current petition, the Petitioner emphasizes the Beneficiary's master's degree and notes 
this degree on the Form I-129 Supplement, suggesting that it was acknowledging the Beneficiary's 
previous approval under the Master's Cap. Finally, the Petitioner contends that since the initial 
petition did not qualify for a master's cap exemption, and it was filed before the regular cap was 
reached, USCIS must have counted it under the regular H-1 B cap. As noted above, the determination 
date is not the date the petition was filed but instead it is the date the decision is properly served upon 
a petitioner. As such, we do not find the Petitioner's contention convincing that the Beneficiary was 
counted under the regular H-lB Cap in FY14. 
We note that it was the Petitioner's affirmative choice to select the Master's Cap exemption and the 
regulations generally do not permit H-1 B petitioners to claim eligibility under alternative grounds: 
"Petitions indicating that they are exempt from the numerical limitation but that are determined by 
USCIS after the final receipt date to be subject to the numerical limit will be denied .... " 8 C.F.R. 
§ 214.2(h)(8)(ii)(B) ( emphasis added). 
As a final matter, we agree with the Director that USCIS is not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may have 
been erroneous. See Matter of Church Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see 
also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Here, the Director's 
determination of cap exemption ineligibility was issued after the final receipt date for the regular H-1 B 
cap. Because the Director determined after the final receipt date that the Beneficiary was ineligible 
for a Master's Cap exemption, the Director properly denied the petition without considering eligibility 
under the general H-1 B Cap. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
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. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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