dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 6, 2015 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and information technology solutions business, seeks to employ 
the Beneficiary as a software engineer/.net developer and to classify him as a nonimmigrant worker in a 
specialty occupation. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b) .. The Director, California 
Service Center, initially approved the petition. Upon subsequent review of the record, the Director 
issued a notice of intent to revoke (NOIR) the approval of the petition, and ultimately revoked the 
approval of the petition. The matter is now before us on appeal. The appeal will be dismissed and the 
approval of the petition will remain revoked. 
The Director revoked the approval of the petition, finding that the Petitioner did not establish that the 
Beneficiary has earned a master's or higher degree from a U.S. institution of higher education as 
defined by 20 U.S.C. § lOOl(a), and is exempt from the H-lB numerical limitations under section 
214(g)(5)(C) ofthe Act. Thereafter, the Petitioner filed an appeal. 
The record of proceeding contains: (1) the Petitioner's Form I-129 and supporting documentation; 
(2) the Director's Notice of Intent to Revoke (NOIR); (3) the Petitioner's response to the NOIR 
( 4) the Director's decision; and (5) the Form I-290B, Notice of Appeal or Motion and supporting 
documentation. We reviewed the record in its entirety before issuing our decision.
1 
For the reasons that will be discussed below, we agree with the Director that the Petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed, and the approval of the petition will remain revoked. 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Matter of I-, Inc. 
I. H-1B MASTER'S CAP EXEMPTION 
A. Legal Framework 
In general, H-1B visas are numerically capped by statute. Pursuant to section 214(g)(l)(A) of the 
Act, the total number ofH-lB visas issued per fiscal year may not exceed 65,000 ("H-1B Cap"). In 
addition, the maximum number of H-IB visas that may be issued per fiscal year pursuant to the 
H-IB cap exemption at section 214(g)(5)(C) of the Act may not exceed 20,000 ("U.S. Master's 
Degree or Higher Cap"). 
Section 214(g)( 5) of the Act states, in pertinent part: 
The numerical limitations ... shall not apply to any nonimmigrant alien issued a visa 
or otherwise provided [H -1 B status] who-
(A) is employed (or has received an offer of employment) at an institution of higher 
education (as defined in section 1001(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 lOl(a) of the Higher Education Act of 1965 (20 
U.S.C. 1001(a)), until the number of aliens who are exempted from such numerical 
limitation during such year exceeds 20,000. 
Section 101(a) ofthe Higher Education Act of 1965 (Pub. Law 89-32), 20 U.S.C. § 1001(a), defines 
an institution of higher education as follows: 
(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 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; 
2 
(b)(6)
Matter of I-, Inc. 
(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 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 time . 
Notably, 8 C.P.R.§ 214.2(h)(8)(ii)(B) states , in part: 
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 and filing fees will not be returned and refunded. 
B. Request by the Petitioner 
In the Form I-129 H-1B Data Collection Supplement
, Part C, the Petitioner marked the item " 1b" to 
indicate that it was applying for the "U.S. Master's Degree or Higher" cap exemption. In the same 
section, at item "2," the Petitioner further stated that the Beneficiary received a master's degree from 
the in Arizona. In support , the Petitioner submitted a copy of 
the Beneficiary's diploma which indicates that he received a master 's degree from the 
on April 13, 2010. The Petitioner marked its April 10, 2012, letter of 
support "Attn: FY13 H1B Cap Case-U .S. MASTER'S CAP EXEMPTION" and reported in the 
letter that "[the Beneficiary] is eligible for the FY13 U.S. Master's Cap Exemption." 
C. Analysis 
Upon review of the record of proceeding, we find that the Petitioner has not established that this 
petition is eligible for the U.S. master 's degree cap exemption . Under section 214(g)(5)(C)of the 
Act, general H-lB cap does not apply to a nonimmigrant alien that holds a master's degree or higher 
from a United States institution of higher education as defined in section 101 (a) of the Higher 
Education Act (HEA) of 1965. The fourth criterion of 101 (a) defines the United States institution of 
higher education as a public or other nonprofit institution. 
The Petitioner claimed an exemption based on the Beneficiary's degree from the 
however, as noted by the Director , the 
3 
(b)(6)
Matter of!- , Inc. 
is a private, for profit institution. 2 On appeal, the Petitioner claims that if this petition is found 
ineligible, it should be counted towards the regular cap and not the master's cap. However, this 
petition was filed on April 16, 2012 requesting a U.S. master's degree or higher cap exemption. On 
June 12, 2012, USCIS issued a notice that it had received sufficient numbers of H-1B petitions to 
reach both the H-1B Cap and the U.S. Master's Degree or Higher Cap for fiscal year (FY) 2013 as of 
that date. 3 Further, the regulations address this scenario and specifically state that petitions 
indicating that they are exempt from the numerical limitation but are determined by users 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). 
The Petitioner suggests that the Director's revocation of the petition was unfair; however, the 
approval was granted contrary to the requirements stated in the law, thus, the revocation was proper. 
Moreover, within the H-1B petition and supporting documents, the Petitioner provided inaccurate 
statements which the Director relied upon in adjudicating the H -1 B petition. An inaccurate 
statement anywhere on the Form I-129 or in the evidence submitted in connection with the petition 
mandates its denial. See 8 C.F.R. § 214.2(h)(lO)(ii); see also 8 C.F.R. § 103.2(b)(1). 
Since the Petitioner has not established that the Beneficiary is exempt from the H -1 B cap and the 
numerical limit has been reached, the approval of this petition will remain revoked. 
II. CONCLUSION AND ORDER 
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 Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). 
Here, that burden has not been met. We will affirm the decision of the Director. The petition's 
approval is revoked pursuant to 8 C.F.R. § 214.2(h)(ll)(iii)(A)(l), (A)(3), and (A)(4). 
ORDER: The appeal is dismissed. 
Cite as Matter of!- , Inc., ID# 13938 (AAO Oct. 6, 2015) 
2 According to the National Center for Education Statistics, which is located within the U.S. Department of Educ at ion 
and the Institute of Education Sciences and is the primarily federal entity for collecting and analyzing data related to 
education in the United States, the is a private, for-profit institution. For more 
information about the see 
https :! /nces.ed.gov/ globallocator/index.asp?search= I &State= AZ&c ity= &zipcode=&m i les=& itemname= 
&sortby=name&School= I &PrivSchool= I &College= I &CS=286ED6F8 (last visited 
October 2, 20 15). 
3 For more information , see http ://www .uscis.gov /news/uscis-reaches-fiscal-year-20 13-h-1 b-cap (last visited October 2, 
2015). 
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