H-1B US Master’s Degree Cap: Graduates of For-Profit and Unaccredited Universities Beware!

Graduates of US master’s degree programs from institutions that are unaccredited or for-profit may now have an additional hurdle in filing H-1B petitions. Generally speaking, there is a separate quota of 20,000 H-1B visas available for graduates of US master’s degree programs. This is advantageous for US master’s degree graduates; if there is an H-1B visa lottery as there was last year, they will have two bites at the apple. That is, they would be included in the US master’s degree lottery, and if they are not selected there, they would be part of the “regular” lottery as well.

However, USCIS has started looking more carefully at the filings to make sure that the petitions counted against the US master’s degree cap actually qualify. The statute that allows for the 20,000 slots for US master’s degree holders specifies that the US master’s degree must be earned from a US institution of higher education as defined in section 101(a) of the Higher Education Act of 1956. This section defines an institution of higher education as one that a) is a public or other nonprofit institution and b) is accredited by a nationally recognized accrediting agency or association (or meets certain other accreditation requirements). There are other elements of the definition as well. However, the key takeaway here is that if you have earned a US master’s degree from an institution that is not accredited or that is for-profit, you may not be eligible to be counted against the US master’s degree cap.

What Does This Mean for You?

  • If your employer is about to submit an H-1B petition for you under the H-1B cap (in April), make sure that you coordinate closely with your attorney to ensure that you are filed under the correct quota.
  • If you are filing an extension or transfer: We have heard reports that USCIS has issued RFEs, or even Notices of Intent to Revoke or Deny petitions where the petition was filed under the US master’s degree quota. That is, even if your case was accepted under the US master’s degree quota previously, the issue could come up again when you file an H-1B transfer or extension. An experienced immigration lawyer could draft an argument that may successfully overcome this problem. For example, if the regular quota was still open when your petition was originally filed, it could be argued that if the case were not eligible for the US master’s degree cap, it should have been accepted under the regular cap, which was open and available at the time the petition was filed.

A graduate of a US master’s program that does not meet the statutory requirements may still file an H-1B petition, but should be careful as to which quota the petition is counted against. Careful planning on the front end can prevent an unhappy surprise down the road. For more information on current trends in H-1B visa processing, please see this post.

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