Immigration Law Blog

Tuesday, February 11, 2014

U.S. Master’s Cap Exemption and Private For-Profit Universities Beware!

As the H-1B Fiscal Year (FY) 2015 Cap Season is about to commence on April 1, 2014, this article is written to address considerations for those who hope to be included in the U.S. Master’s Cap Exemption and who may have been included in the past in error.

U.S. Institutions of Higher Education
There is a burgeoning issue that has recently arisen out of the California Service Centers which has broad implications for foreign nationals that were previously “counted” in the “US Master’s Cap Exemption.” Specifically, the US Master’s Cap Exemption only applies U.S. Institutions of Higher Education as defined by 20 U.S.C. 1001(a). In relevant part, among other criteria, the school: 

  • Must be authorized by a State to provide post-secondary education; and
  • Must be a public or other nonprofit institution; and
  • Must be accredited by a nationally recognized accrediting agency or association recognized accrediting agency or association. 

How to check whether your school qualifies:
Ideally, a student should be able to verify this information directly with his/her school. However, in light of recent experiences, we highly recommend that the student independently verify these qualifications. It is not sufficient that the school is simply SEVP certified.

State Public Colleges and Universities are Institutions of Higher Education: You can generally rely that a state operated college or university meets the above criteria. For example, in California both the University of California (UC) and the California State University (CSU) systems will qualify as a U.S. Institution of Higher Education, and you do not need to further verify their status. 

Authorization by a State: For private, post-secondary institutions, you can check with the educational authorities of the state where your school’s operates to find out if your school is authorized to operate.  For example, in California, a private post-secondary institution is authorized to operate in this state without having to separately seek licensure if that school is WASC accredited. Thus, for example, Stanford University is a private postsecondary institute that is WASC accredited and does not require any further license requirements. Some schools though do choose to get the additional license requirement even if they are WASC accredited.

Private Schools Must Be Nonprofit:  For private schools, you will need to verify if the school is also a nonprofit institution. One reliable source for this information is the IRS since that agency permits qualifying nonprofit organizations to receive tax exempt status. You can search the IRS’s Exempt Organization’s Directory.[1]

Accredited:  Finally, you should verify whether the school is accredited by a nationally recognized accrediting agency through the Department of Education’s Database of Accredited Postsecondary Institutions and Programs.[2]  Students who have attended schools that do not meet all of the above criteria cannot qualify for the Master’s Cap.

Erroneously counted in Master’s Cap in past, what now?
Perhaps the most disturbing aspect of this evolving issue is that students who previously attended schools that did not meet the above criteria and whose cases were previously approved by USCIS now face the very real possibility that their previous H-1B petitions may be revoked, thereby potentially leaving them without status. It is our understanding that the California Service Center began enforcing this policy in 2012-2013 and has revoked cases when an H-1B beneficiary seeks an extension of H-1B status or change of employer, or USCIS is otherwise made aware that the prior case was incorrectly counted in the Master’s Cap. USCIS has taken the position that while the Service was in error, it has not in turn always provided relief to H-1B beneficiaries in this predicament. In view of this escalating issue, we highly recommend you seek legal counsel to determine whether it would be appropriate for you to re-apply in this year’s Regular H-1B Cap, or evaluate other options.

It may be possible to mitigate the risk to your current H-1B and reduce out of work time. We recommend discussing your case with an experienced immigration attorney to develop a strategy with the least disruption to your current H-1B.

Peddibhotla Law.  Firm.Kalpana V. Peddibhotla has represented hundreds of students, including former TVU students and has been a featured speaker by AILA on immigration issues at “Troubled Schools.”

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