The electronic registration system, introduced for the FY 2021 H-1B lottery, will continue to be implemented for this upcoming H-1B lottery. Attorneys/employers are required 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 and accredited by a nationally recognized accrediting agency or granted a pre-accreditation status. In respect to the institution’s accreditation requirement, the school must have been accredited, or in pre-accreditation status, at the time the degree was conferred. This distinction is important to mention because if the otherwise qualifying school was properly accredited at the time a student graduated (degree was conferred), but then later that school lost accreditation, the loss of accreditation would 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.

This year, USCIS will issue selection notices that provide which cap limit the registrant falls under. 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 even when USCIS failed to properly vet the initial cap-subject petition. 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 verify whether the beneficiary actually qualified for the Master’s cap exemption at their initial time of filing. There is substantial risk that USCIS will later identify the mistake and act accordingly to remedy the issue, most likely by revoking the H-1B.

As we move forward with the H-1B electronic registration system for this upcoming lottery, it is imperative 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: Jeanetly Garcia

Jeanetly is an associate attorney at Reddy Neumann Brown PC She practices immigration law with an emphasis on H-1B nonimmigrant visas.