sustained H-1B Case: Human Factors Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 3, 2025 In Re: 35908568 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
The Petitioner, an automobile manufacturer, seeks to temporarily employ the Beneficiary as a senior 
human factors engineer under the H-lB nonimrnigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
The H-lB program allows a U.S. employer to file a petition with U.S. Citizenship and Immigration 
Services (USCIS) 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 Nebraska Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding that the Beneficiary was not eligible under the advanced degree exemption 
(master's cap). The matter is now before us on appeal under 8 C.F.R. § 103.3. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the 
Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we 
will sustain the appeal. 
I. LEGAL FRAMEWORK 
In general, H-lB visas are numerically capped by statute. Pursuant to section 2 l 4(g)(l )(A) of the Act, 
the total number of H-lB visas issued per fiscal year may not exceed 65,000. In general, section 
2 l 4(g)( 5) of the Act provides that: 
The numerical limitations contained in paragraph (l)(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
10l(a)(l5)(H)(i)(b) who-
(A) 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. lO0l(a))), 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 101 (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. 
For purposes of section 214(g)(5)(A) of the Act, "institution of higher education" has the same 
definition as described at section l0l(a) of the Higher Education Act of 1965. 8 C.F.R. 
§ 214.2(h)(8)(F)(l). Section lOl(a) of the Higher Education Act of 1965, Pub. L. No. 89-329, 
20 U.S.C. § l00l(a), defines an institution ofhigher 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. 
Under the H-lB numerical limitations at 8 C.F.R. § 214.2(h)(8)(iii), the regulation prescribes how 
USCIS will conduct the advanced degree exemption selection when it receives more H-lB 
registrations than there are new status grants available for a given fiscal year: 
Advanced degree exemption selection. After USCIS has determined it will no longer accept 
registrations under section 214(g)(l)(A) of the Act, USCIS will determine whether there is a 
sufficient number of remaining registrations to meet the H-1 B advanced degree exemption. 
(ii) Sufficient registrations to meet the H-IB advanced degree exemption numerical 
limitation. If USCIS determines that it has received more than enough 
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registrations for unique beneficiaries to meet the H-1 B advanced degree 
exemption numerical limitation, USCIS will no longer accept registrations that 
may be eligible for exemption under section 214(g)(5)(C) of the Act and will 
notify the public of the final registration date. USCIS will randomly select the 
number of registrations for unique beneficiaries needed to meet the H-lB 
advanced degree exemption numerical limitation from among the remaining 
registrations for unique beneficiaries who may be counted against the advanced 
degree exemption numerical limitation. This random selection will be made via 
computer-generated selection, based on the unique beneficiary. 
8 C.F.R. § 214.2(h)(8)(iii)(A)(6). 
II. ANALYSIS 
After the registration submitted on the Beneficiary's behalf was not selected among the 65,000 regular 
cap, he was selected within the category of registrations that were cap-subject under the advanced 
degree exemption numerical limitation of 20,000 annual visas (master's cap). The Petitioner filed the 
petition on June 18, 2024, as a cap-subject petition under the master's cap. After the Director issued 
a request for evidence notifying the Petitioner the record did not establish the Beneficiary qualified 
for the master's cap exemption because it did not demonstrate his master's degree was completed prior 
to the date the organization filed the petition, they denied the petition on that same basis. In doing so, 
the Director noted: 
• The institution awarded the Beneficiary's master's degree on August 17, 2024; 
• The letters from the institution did not establish his master's degree was completed prior the 
date the organization filed the petition as it was not from a proper authority within the college, 
it did not explain why the degree had not been conferred before the petition filing date despite 
the requirements having been met, and it did not state the date the Beneficiary met the relevant 
requirements; and 
• The copy of the Beneficiary's transcript dated March 19, 2024, did not establish his master's 
degree was completed prior to the petition filing, as it did not indicate that all degree 
requirements were met. 
The Petitioner appeals that determination claiming the Director did not take into account the letter 
from the institution that the petitioning organization submitted when they filed the petition is from the 
college's equivalent to the registrar's office, and it therefore complies with all the elements the 
Director indicated were lacking. Accompanying the appeal, the Petitioner offers additional 
corroborating material that establishes he fully completed all the requirements for his degree as of 
June 4, 2024; two days before they filed the petition. In other words, the record reflects the Beneficiary 
was eligible for consideration under the master's cap on the date the Petitioner filed the petition. 
Based on that determination, the Petitioner has overcome the decision's adverse bases, and we will 
sustain the appeal. 
ORDER: The appeal is sustained. 
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