remanded H-1B Case: Education

(b)(6)
DATE: 
IN RE: 
PETITION: 
fEB 1 8 2015 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a) (l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The director's decision will be 
withdrawn. The matter will be remanded to the service center director for further consideration and 
action. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner submitted a Petition for a Nonimmigrant Worker (Form 1-129) to the California 
Service Center. In the Form I-129 visa petition, the petitioner describes itself as an educational 
institution/charter school that was established in In order to continuously employ the 
beneficiary in what it designates as a mathematics teacher position, the petitioner seeks to classify 
him as a nonimmigrant worker in a specialty occupation pursuant to section 101 ( a)(15)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 110l (a)(15)(H)(i)(b).1 
The director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued a Notice of Intent to Deny (NOID). Thereafter, the petitioner responded to the NOID. The 
director reviewed the information provided by the petitioner. The director determined that the 
petitioner did not establish eligibility for the benefit sought. On appeal, the petitioner asserts that 
the director's basis for denial of the petition was erroneous and contends that it satisfied all 
evidentiary requirements. 
The record of proceeding contains: (1) the petitioner's Form I-129 and supporting documentation; 
(2) the director's NOID; (3) the petitioner's response to the NOID; (4) the notice of decision; and (5) 
the Notice of Appeal or Motion (Form I-290B) and supporting materials. We reviewed the record 
in its entirety before issuing our decision. 
II. THE DIRECTOR'S DECISION 
We note that the director denied the petition, finding that the petitioner did not establish that it 
complied with the terms and conditions of the previously approved employment. However, upon 
review, we found an additional issue, beyond the decision of the director, that precludes approval of 
this petition. Specifically, the director did not address whether the petitioner established that it is 
H -1 B cap exempt as a nonprofit organization related to or affiliated with an institution of higher 
education. We note that this issue precludes approval of the petition on an objective basis that can 
only be overcome by filing a new H-lB petition with fee. Thus, the petition will be remanded to the 
director for review and issuance of a new decision. 2 
III. H-lB CAP EXEMPTION 
1 On the Form I-129 petition, the petitioner stated that the beneficiary would serve in a mathematics teacher 
position. In the support letter, the petitioner stated that the beneficiary will be employed "in the po sition of 
science teacher." The petitioner further indicated that it "wants to continue employing the beneficiary in the 
position of'Middle School/Science teacher."' No explanation for the variance was provided by the petitioner. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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NON-PRECEDENT DECISION 
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The instant petition was filed to request an extension of a previously approved petition (receipt 
number Notably, the previously approved petition was filed as a cap-exempt 
petition based upon the petitioner's claim that it is a nonprofit entity related to or affiliated with an 
institution of higher education as defined in section 101(a) of the Higher Education Act of 1965, 
20 U.S.C. lOOl(a). However, we find that the record of proceeding does not establish that it is 
related to or affiliated with an institution of higher education. 
A. Applicable Law 
Section 214(g)(5)(A) of the Act, as modified by the American Competitiveness in the Twenty-first 
Century Act (AC21), Pub. L. No. 106-313 (October 17, 2000), states, in relevant part, that the H-1B 
cap shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under 
section 101(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 101(a) of the Higher Education Act of 
1965 (20 U.S.C. 1001(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-1B regulations adopt the definition of institution ofhigher education set forth 
in section 1 Ol(a) of the Higher Education Act of 1965. Section 101(a) of the Higher Education Act 
of 1965, (Pub. Law 89-329), 20 U.S.C. § lOOI(a), defines an institution of higher education 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; 
(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. 
The governing statute, 8 U.S.C. § 1184(g)(5)(A), contains no definitions for determining if an 
employer qualifies as a "related or affiliated nonprofit entity" of an institution of higher education 
under 20 U.S.C. § 1 OOI(a). 
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NON-PRECEDENTDEC�ION 
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Pursuant to 8 C.F.R. § 214(h)(19)(iv), a nonprofit organization or entity is defined as: 
(A) Defined as a tax exempt organization under the Internal Revenue Code of 1986, 
section 501(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. 
USCIS provided guidance in a June 2006 memo from Michael Aytes. According to USCIS policy, 
the definition of related or affiliated nonprofit entity that should be applied in this instance is found 
at 8 C.F.R. § 214.2(h)(19)(iii)(B). See Aytes Memo at 4 ("[T]he H-1B regulations define what is an 
affiliated nonprofit entity for purposes of the H-1B fee exemption. Adjudicators should apply the 
same definitions to determine whether an entity qualifies as an affiliated nonprofit entit[y] for 
purposes of exemption from the H-1B cap"). 
Title 8 C.F .R. § 214.2(h)(19)(iii)(B), which was promulgated in connection with the enactment of 
ACWIA,3 defines what is a related or affiliated nonprofit entity specifically for purposes of the 
H-1B 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. 
By including the phrase "related or affiliated nonprofit entity" in the language of the American 
Competitiveness in the Twenty-first Century Act (AC21), Pub. L. No. 106-313 (October 17, 2000), 
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 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, the AAO finds that 8 C.F.R. § 214(h)(19)(iii)(B) 
allows a petitioner to demonstrate that it is an affiliated or related nonprofit entity if it establishes 
one or more of the 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 Enacted as Title IV of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for 
Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat. 2681, 2681-641. 
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NON-PRECEDENT DECISION 
(3) Attached to an institution of higher education as a member, branch, cooperative, or 
subsidiary. 4 
The petitioner must, therefore, establish that the beneficiary will be employed "at" an entity that 
satisfies the definition at 8 C.F.R. § 214.2(h)(19)(iii)(B) as a related or affiliated nonprofit entity of 
an institution of higher education under section 214(g)(5)(A) of the Act in order for the beneficiary 
to be exempt from the FY14 H-lB cap. 
B. Discussion 
In this matter, the petitioner asserts that it is H-lB cap exempt under section 214(g)(5)(A) of the 
Act; specifically, that it is related to or affiliated with an institution of higher education as defined 
by section 101 (a) of the Higher Education Act of 1965. In sur> ort of its claim, the petitioner 
submitted a document entitled "Affiliation Agreement" between 
and The document is dated July 20, 2005.' The 
agreement states that it is "for a period of five years" and that it "may be renewed by mutual written 
agreement ninety (90) days prior to the expiration date of the term of the agreement." The 
petitioner did not submit documentary evidence to establish that this agreement was renewed. 6 
4 This reading is consistent with the Department of Labor's regulation at 20 C.F.R. § 656.40(e)(ii), which is 
identical to 8 C.F.R. § 2!4.2(h)(l9)(iii)(B) except for an additional comma between the words "federation" and 
"operated". The Department of Labor explained in the supplementary information to its ACWlA regulations 
that it consulted with the former 1NS on the issue, supporting the conclusion that the definitions were intended 
to be identical. See 65 Fed. Reg. 80110, 80181 (Dec. 20, 2000). 
5 The petitioner also submitted a letter from dated May 19, 2009, which indicates the petitioner and 
other schools are also included in the agreement. 
6 USCIS announced that it was temporarily applying interim procedures to H-1 B non-profit entity petitions 
filed with the agency seeking an exemption from the statutory H-1 B numerical cap based on an affiliation 
with or relation to an institution of higher education. According to the interim guidance, USCIS will give 
deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated 
with an institution of higher education - absent any significant change in circumstances or clear error in the 
prior adjudication - and, therefore, exempt from the H-1 B statutory cap. However, the guidance specifies 
that the burden remains on the petitioner to show that its organization previously received approvals of its 
request for H-1 B cap exemption as a non-profit entity that is related to or affiliated with an institution of 
higher education. 
Therefore, to establish eligibility under the interim guidance, the petitioner must provide probative evidence 
demonstrating that the petitioner previously received approvals of its request for H-1 B cap exemption as a 
non-profit entity that is related to or affiliated with since June 6, 
2006. The interim guidance states that petitioners may provide evidence such as a copy of the previously 
approved cap-exempt petition (i.e. Form 1-129 and pertinent attachments) and the previously issued 
applicable Form 1-797 approval notice issued by USCJS since June 6, 2006, and any documentation that was 
submitted in support of the claimed cap exemption. Furthermore, the guidance suggests that petitioners 
include a statement attesting that the organization was approved as cap-exempt since June 6, 2006. USCIS 
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NON-PRECEDENT DECISION 
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Therefore, it appears that this agreement expired on or about July 20, 2010. 
The instant petition was filed on May 10, 2014. Therefore, at the time of filing this petition, the 
documentation provided by the petitioner indicates that the agreement had already expired and was 
not valid. Further, the previously approved petition (receipt number was 
submitted with the same agreement in support of its claim for H-lB cap exemption. It was filed on 
April 15, 2013, which is also after the agreement had expired.7 Consequently, the petitioner's 
assertion that it is H-lB cap exempt by virtue of its relationship with is not supported by 
documentary evidence in the record of proceeding. The petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. 8 C.F.R. § l03.2(b)(l). 
As the record of proceeding does not establish that the petitioner is a nonprofit entity related to or 
affiliated with an institution of higher education, the petition will be remanded for further review. 
IV. CONCLUSION 
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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, the director's decision will be withdrawn and the matter will be remanded for 
further review and entry of a new decision. 
ORDER: The director's decision dated June 19, 2014 is withdrawn. The matter is remanded to 
the director for action consistent with this decision. 
emphasizes that evidence of previous determinations of cap exemption will be considered on a case by case 
basis. 
7 We note that the petitioner claims in its support letter that it "filed several cap-exempt H-1 B petitions as a 
non-profit entity related to or affiliated with an institution of higher education since June 6, 2006" and the 
petitions were approved. Upon review of the files, it appears that there has been a significant change of 
circumstances and/or a clear error in the prior adjudications. Further, we are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(eomm'r 1988). It would be absurd to suggest that users or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). 
A prior approval does not compel the approval of a subsequent petition or relieve the petitioner of its burden 
to provide sufficient documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 
2612 (Jan. 26, 1990). A prior approval also does not preclude users from denying an extension of an 
original visa petition based on a reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. 
'Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Furthermore, our authority over the 
service centers is comparable to the relationship bet\veen a court of appeals and a district court. Even if a 
service center director had approved the nonimmigrant petitions on behalf of the beneficiary, we would not 
be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 
2000 WL 282785 (E.D. La.), affd, 248 F.Jd 1139 (5th eir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
(b)(6)