remanded H-1B Case: Education

MATTER OF G-R-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a charter school, seeks to temporarily employ the Beneficiary as an "elementary 
bilingual teacher" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(l5)(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, California Service Center, denied the petition, finding that the Petitioner had not 
established that the Beneficiary was qualified for the position. The matter is now before us on 
appeal. 
Upon review of the entire record of proceedings, we find that another, more fundamental issue has not 
been resolved: whether the Petitioner qualifies for an exemption from the Fiscal Year 2016 (FY16) 
H-IB cap as an entity that is related to or affiliation with an institution of higher education. We are 
therefore remanding this matter to the Director for further review. 
I. THE LAW 
In general, H-lB visas are numerically capped by statute. Pursuant to section 214(g)(l )(A) of the 
Act, 8 U.S.C. § 1184(g)(l )(A), the total number of H-1 B visas issued per fiscal year may not exceed 
65,000. 
Section 214(g)(5)(A) of the Act, as modified by the American Competitiveness in the Twenty-first 
Century Act of2000 (AC21), Pub. L. No. 106-313 (Oct. 17, 2000), states, in relevant part, that the 
H-1 B cap shall not apply to any nonimmigrant individual issued a visa or otherwise provided status 
under section 10l(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 lOl(a) of the Higher 
Education Act of 1965 (20 U.S.C. IOOl(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-lB regulations adopt the definition of institution of higher education set forth 
Matter ofG-R-S-, Inc. 
in section IOI(a) of the Higher Education Act of 1965. Section IOI(a) of the Higher Education Act 
of 1965, Pub. L. No. 89-329, 20 U.S.C. § I OOI(a), defines an institution of higher education as an 
educational institution in any state that: 
(I) 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; 
(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. 
Pursuant to 8 C.F.R. § 214.2(h)(l9)(iv), a nonprofit organization or entity is: 
(A) Defined as a tax exempt organization under the Internal Revenue Code of 
1986, section 50l(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) or (c)(6), 
and 
(B) Has been approved as a tax exempt organization for research or educational 
purposes by the Internal Revenue Service. 
Title 8 C.F.R. § 214.2(h)(l9)(iii)(B), which was promulgated in connection with the enactment of 
the American Competitiveness and Workforce Improvement Act of 1998, 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 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. 
2 
(b)(6)
Matter ofG-R-S-, Inc. 
By including the phrase "related or affiliated nonprofit entity" in the language of AC21 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 of the 
enactment of AC21: the definition found at 8 C.F.R. § 214.2(h)(19)(iii)(B). It is presumed that 
Congress is aware of U.S. Citizenship and Immigration Services (USCIS) regulations at the time it 
passes a law. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988). 
Reducing the provision to its essential elements, we find that 8 C.F.R. § 214.2(h)(19)(iii)(B) allows a 
petitioner to demonstrate that it is an affiliated or related nonprofit entity if it establishes one or more 
ofthe following: 
(1) Connected or associated with an institution of higher education, through 
shared ownership or control by the same board or federation; 
(2) Operated by an institution of higher education; or 
(3) Attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary.
1 
II. THE RELATIONSHIP 
The Petitioner claims that U.S. Citizenship and Immigration Services (USCIS) previously 
determined that it was cap exempt based upon its relationship with The 
Petitioner provided a letter issued by on August 1, 2014, which describes 
their relationship as follows: 
We appreciate your partnership with us by hiring our graduates, allowing students to 
observe master teachers in your district, and offering your schools for student 
teaching. 
In support of the assertion that it is cap exempt, the Petitioner references its previously approved 
H-1 B petitions and a USCIS memorandum. 2 We note, however, that, it would constitute clear error 
1 This reading is consistent with the Department of Labor's regulation at 20 C.F.R. § 656.40(e)(ii), which is essentially 
identical to 8 C.F.R. § 214.2(h)(l9)(iii)(B). The Department of Labor explained in the supplementary information to its 
ACWIA regulations that it consulted with the former INS on the issue, supporting the conclusion that the definitions were 
intended to be identical. See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on 
H-1 B Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of 
Aliens in the United States, 65 Fed. Reg. 80, ll 0, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 
655-56). 
1 For additional information, see USCIS Policy Memorandum PM-602-0037, Additional Guidance to the Field on Giving 
Deference to Prior Determinations of H-1 B Cap Exemption Based on Affiliation (Apr. II, 2011 ), 
hnps: //www.uscis.gov/laws /policy-memoranda. 
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(b)(6)
Malter oJG-R-S-, Inc. 
if the prior approvals were based upon the Petitioner's relationship with 
described in this letter. 
III. CONCLUSION 
as 
Therefore, the matter will be remanded to the Director for further review. The Director may request 
any additional evidence considered pertinent to the determination. 
ORDER: The decision of the Director, California Service Center is withdrawn. The matter is 
remanded to the Director, California Service Center, for further proceedings 
consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofG-R-S-, Inc., ID# 18307 (AAO July 18, 2016) 
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