USCIS Clarifies How Loss of School Accreditation Impacts Master's Cap Eligibility

Jun 12, 2017

USCIS Clarifies How Loss of School Accreditation Impacts Master’s Cap Eligibility

By Justin Kadich, Esq., Associate Attorney of the Nair Law Group, APC.

Under the current law, 85,000 new H-1B visas are allotted under the cap each year and of this amount, 20,000 are reserved for foreign workers who have earned a U.S. Master’s degree or higher. In years where the demand overruns the supply and USCIS runs a lottery; the applications qualifying under the US Master’s degree is run through a random selection process first. Then, all the unselected US Master’s cap applications are added to the Regular Cap applications and another random selection process takes. This means that a foreign worker who is eligible for the “US Master’s Cap” unquestionably has a competitive advantage and being selected in the random lottery that USCIS holds to select petitions. This in effect gives a candidate under the US Master’s Cap two bites of the apple to win the H-1B lottery and have an opportunity to secure an H-1B visa. Therefore, both petitioners and beneficiaries strongly prefer to file a cap eligible petition under the US Master’s Cap.

 

However, the regulations governing the eligibility criteria under the US Master’s Cap is strict and  not every Master’s or higher degree earned in the United States is eligible for the US Master’s Cap. In order for a degree to qualify under the Master’s Cap, the conferring institution must qualify a “United States institution of higher education” as defined Section 101(a) of the Higher Education Act of 1965. While the institution must meet five criteria to qualify, a key qualification is that the institution must be “accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted reaccreditation status by such an agency…”

 

An unaccredited institution is not an eligible institution for the US Master’s Cap. However, a more common and more difficult scenario arises is when a previously accredited institution subsequently loses that accreditation. Here the question becomes, how does this loss of accreditation impact a beneficiary’s eligibility to file under the US Master’s Cap? Is a beneficiary who graduated before the loss of accreditation remains Master’s Cap eligible? On the other hand, does the loss of accreditation prevent the beneficiary from being Master’s Cap eligible going further?

 

This became an issue on December 12, 2016, when the U.S. Department of Education announced that it would no longer recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  The U.S. Department of Education’s decision impacted students that earned Master’s degrees or higher from institutions such as Stratford University and Silicon Valley University that are solely accredited by ACICS.

On May 23, 2017, USCIS issued a Policy Memorandum PM-602-0145 designating the Administrative Appeals Office (AAO) decision in Matter of A-T-Inc., 2017-04 (AAO May 23, 2017) as binding precedent. Matter of A-T-Inc. clarifies that, in order to qualify for an H-1B numerical cap exemption based upon a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned.”[1]

 

It should be noted that the AAO decision was initially issued in December 2013, however the AAO reopened the case to make revisions ahead of USCIS designating it as an adopted decision. In Matter of A-T-Inc., the beneficiary earned a Master’s degree from International Technological University in December 2010. At which time the institution was not accredited nor did it have pre-accreditation status. In this instance, when the H-1B Master’s Cap petition was filed the school was in pre-accreditation status. The Director of the California Service Center denied the H-1B petition; concluding that the beneficiary was ineligible under the Master’s Cap because the institution was not accredited at the time it (the institution) awarded the Beneficiary’s master’s degree, and thus the beneficiary had not earned his degree, as required, from a “United States institution of higher education.”

 

On appeal, the Petitioner’s principal argument was that since International Technological University was accredited (pre-accredited) at the time of filing, the beneficiary was eligible to file under the US Master’s CAP. The AAO (and now USCIS) reject both arguments.

 

According to the AAO requiring beneficiary’s to earn degrees from schools that are “pre-accredited” or “accredited” is consistent ensuring “…the quality of education necessary to merit a Master’s Cap Exemption.” The AAO also rejected the Petitioner’s second argument that the even if the beneficiary was ineligible for the Master’s Cap, that the application should have been placed in the Regular Cap rather than rejected.  The AAO noted that the current regulations do not permit Petitioners to claim H-1B eligibility under alternate grounds.

 

The major takeaway here is that we have binding guidance from USCIS concerning the impact of lost accreditation on Master’s Cap eligibility. It is clear now that in order to qualify for an H-1B numerical cap exemption based upon a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned. This means that as long as the college or university was accredited (or pre-accredited) at the time the degree was earned; the student qualifies under the US Master’s CAP. It does not matter if the school loses its accreditation at a later date.

 

Should you have more questions related to this or other immigration related questions, please do not hesitate to reach out to our attorneys at info@nairlaw.com.