remanded H-1B Case: Research

MATTER OF J-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 3, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner states on the petition that it is a "non-profit research and job development" company 
that seeks to temporarily employ the Beneficiary as a "research analyst" under the H -1 B 
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-1B 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. The Director determined that the 
Beneficiary was not eligible for an exemption to the numerical limitation for the 2016 fiscal year 
based on a master's or higher degree from a United States institution of higher education because the 
Petitioner was a nonprofit research organization. 
On appeal, the Petitioner submits a brief asserting that the Director's conclusion was erroneous. 
Upon de novo review, we will remand the appeal. 
I. 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. 
An exemption from the H-1B is available for certain petitions. 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-1B 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. 
MatterofJ-
(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. 
II. PROCEDURAL HISTORY 
The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, on April 1, 2015, 
. requesting an employment start date of October 1, 2015. The Form I-129 H-1B Data Collection and 
Filing Fee Supplement, at Section 3, Numerical Limitation Information, reads as follows: 
1. Specify the type of H -1 B petition you are filing. (select only one box): 
D a. CAP H-1B Bachelor's Degree 
• b. CAP H-1B U.S. Master's Degree or Higher 
D c. CAP H-1B1 Chile/Singapore 
D d. CAP Exempt 
In this matter, by requesting an employment start date of October 1, 2015, the instant petition is 
subject to the Fiscal Year 2016 (FY16) limitation on H-1 B beneficiaries. The Petitioner checked 
box bat Section 3, question 1, indicating that the Beneficiaryhas a U.S. master's degree or higher, 
and thereby claimed an exemption from the numerical limitation contained in section 
214(g)(1)(A)(vii) ofthe Act pursuant to section 214(g)(5)(C) of the Act. 
Simultaneously, at Section 2, Fee Exemption and Determination, the Petitioner answered yes to 
question 3, which states: "Are you a nonprofit research organization or governmental research 
organization" as defined in 8 C.F.R. § 214.2(h)(19)(iii)(C)?" 
Thus, the Petitioner requested an exemption from the numerical limitation based on the 
Beneficiary's attainment of a U.S. master's degree. The Petitioner also stated on the Form I-129 
petition that it is a nonprofit research organization as defined in 8 C.F.R. 214.2(h)(l9)(iii)(C). Based 
on the Petitioner's affirmation that it was a nonprofit research organization, and a review of U.S: 
Citizenship and- Immigration Services (USCIS) records demonstrating that the Petitioner had 
previously been given cap exempt status by virtue of this classification, the Director denied the 
petition. The Director concluded that the Petitioner could not discretionarily claim a master's cap 
number when it was otherwise exempt from the numerical limitations by virtue of its designation as 
a nonprofit research association. On appeal, the Petitioner asserts that the Director's denial of the 
petition on this basis was erroneous, claiming its req11est to be treated as a cap-subject Petitioner was 
clearly stated and the Director's decision was contrary to Congressional intent. 
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MatterofJ-
III. DISCUSSION 
USC IS's Adjudicator's Field Manual (AFM) provides the following: 1 
When reviewing a petition involving a potential 20,000 cap case, adjudicators should 
first determine if there is another basis to exempt the alien beneficiary from the 
65,000 H-lB cap. For example, if the alien is being petitioned for by an entity 
described in section 214(g)(5)(A) or (B) of the INA, he or she may be exempt from 
the annual 65,000 cap, as these provisions do not contain a numerical limit. Similarly, 
if the employer is simply amending the H -1 B petition, seeking an alien for concurrent 
employment, or is changing employment for an alien who is already in H-lB status, 
the petition may be approved as a cap-exempt case. Adjudicators should always apply 
all exemptions that do not contain numerical limitations first before applying the J 
"masters or higher" 20,000 exemption. · 
We are therefore remanding the petition to the Director to review whether the Petitioner established 
that the petition is exempt from the H-lB numerical limitations under section 214(g)(5)(B) of the 
Act. 
IV. CONCLUSION 
For the reasons outlined above, the matter will be remanded to the Director for further review and 
issuance of a new decision in accordance with the applicable statutory and regulatory provisions. 
The Director may request any additional evidence considered pertinent to the new 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 of J-, ID# 94099 (AAO Oct. 3, 2016) 
1 
For additional information, see USCIS Adjudicator's Field Manual (AFM), Chapter 31.3(g)(IO), "H-18 Cap 
Exemption for Aliens Holding a U.S. Master's or Higher Degree." 
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