USCIS Issues Policy Guidance on H-1B Master's Degree Cap Exemption Case

U.S. Citizenship and Immigration Services (USCIS) recently published a policy memorandum designating Matter of A-T- as an "Adopted Decision," which establishes policy that applies to and binds all USCIS employees. "USCIS personnel are directed to follow the reasoning in this decision in similar cases," the memo states. The decision clarifies that to qualify for an H-1B numerical cap exemption based on 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.

In Matter of A-T- Inc., Adopted Decision 2017-04 (AAO May 23, 2017), the California Service Center director denied the H-1B petition, concluding that the beneficiary did not qualify for the claimed master's cap exemption because the degree-conferring institution was not accredited when it awarded the beneficiary's master's degree. The petitioner asserted that a master's degree does not need to be from a U.S. institution of higher education when the degree is awarded to qualify for the master's cap exemption, but rather that a beneficiary may qualify for the exemption if he or she earned a degree from an entity that qualified as a U.S. institution of higher education at the time of adjudication. The Administrative Appeals Office (AAO) disagreed, noting that the degree must have been earned from an institution that has either been accredited or granted preaccreditation status. Among other things, the AAO noted that if a beneficiary could qualify for the master's cap exemption based on accreditation or preaccreditation that happens long after the degree was earned, this would not necessarily reflect the quality of the beneficiary's education. Conversely, the beneficiary subsequently could become ineligible for the exemption if the institution ended up not being accredited. Thus, the AAO noted, the petitioner's proffered interpretation introduces uncertainty for graduates seeking immigration benefits over time. In contrast, the AAO said, under its interpretation, an individual who earns a degree from an accredited or preaccredited institution may continue to qualify for the master's cap exemption even if the institution later closes or loses its accreditation status. Therefore, the AAO said it interprets the statute as requiring that the institution's qualifications be established at the time the degree is earned, and the date the beneficiary earned his master's degree is critical.

The USCIS policy memorandum is at https://www.uscis.gov/sites/default/files/files/nativedocuments/APPROVED_PM-602-0145_Matter_of_A-T-_Inc_Adopted_Decision.pdf