Reminder! Qualifying for the H-1B Master’s Cap

With the new electronic registration system implemented for the upcoming H-1B lottery, attorneys/employers will need to indicate whether the registrant (the prospective H-1B beneficiary) will be filed under the Master’s cap or the regular cap in order to complete registration for that individual. Failure to correctly indicate which cap limit the registrant falls under may create issues when it comes time to file the H-1B petition if selected.

In order to qualify for the advance degree exemption, or the Master’s cap, the beneficiary must have earned, at the time of filing, a Master’s or higher degree from a qualifying U.S. institution of higher education as defined in 20 USC 1001(a).[1] By regulation, the U.S. degree must be issued by an institution of higher education that is a public or other nonprofit institution. The institution must also be accredited by a nationally recognized accrediting agency or granted a pre-accreditation status. For the latter point, it is important to distinguish that the school must have been accredited, or in pre-accreditation status, at the time the degree was conferred. If the otherwise qualifying school was properly accredited at the time a student graduated, but then later that school lost accreditation, this does not impact that student’s eligibility for the Master’s cap.

Below are some common scenarios with the Master’s degree and determining eligibility for the Master’s cap exemption:

  • Master’s from a private, non-profit, accredited school? Eligible.
  • Master’s from a private, for-profit, accredited school? Not eligible. 
  • Master’s from a public, non-profit, unaccredited school? Not eligible. 
  • Master’s from a private, non-profit, unaccredited school? Not eligible.

As you can see, simply obtaining a Master’s or higher degree from a U.S. school does not guarantee the beneficiary is actually eligible for the Master’s cap exemption. If the Master’s degree is from a U.S. school that is for-profit and/or unaccredited, the beneficiary would not qualify for the Master’s cap and would need to file under the regular H-1B cap.

In recent years, USCIS has issued a number of denials and revocations of H-1Bs wrongly approved under the Master’s cap. USCIS has even gone as far back as reviewing initial H-1Bs approved years ago - despite a history of subsequent H-1B amendment/extension approvals - to check if the beneficiary actually qualified for the Master’s cap exemption at the time. It is apparent that even when USCIS failed to properly vet the initial cap-subject petition, there is substantial risk that USCIS will later on catch the mistake and then act accordingly to remedy the issue, most likely by revoking the H-1B.

As we move forward with the new H-1B electronic registration system for the upcoming lottery, it is highly important that employers/attorneys submitting the registrations carefully review each individual’s education to determine if that individual qualifies for the Master’s cap exemption.  For employers, we recommend using a qualified attorney to complete your registrations to ensure a thorough and accurate review at the time of registration, rather than risking a potential issue later in the process if selected in the lottery.

[1] 20 U.S.C. § 1001(a), https://www.law.cornell.edu/uscode/text/20/1001.

 

By: Cathy Liu

Cathy Liu is an associate attorney in the H-1B department at Reddy & Neumann, P.C. Her practice primarily covers H-1Bs and other nonimmigrant employment based visas.

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