H-1B Cap Season for FY 2015: Master’s Cap Issues

With the H-1B filing window opening on April 1st, 2014, you should be aware of an important issue while filing H-1B under advanced-degree exemption, also called master’s cap. 

Each year 20,000 H-1B visas are available under the advanced degree exemption for individuals who have earned a master’s or higher degree from an accredited institution in the U.S.; however, not all master’s degree qualify for this exemption.  The school issuing the master’s degree must meet the definition of an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965.  Specifically, the school must meet two requirements – (1) school must be accredited[1] by a nationally recognized accrediting agency or association, and (2) school must be a public or other nonprofit institution[2].  The U.S. has no centralized authority exercising control over postsecondary educational institutions.  The United States Department of Education (ED) recognizes certain accrediting bodies for the accreditation of institutions of higher (postsecondary) education. 

If your school is a private, for-profit, or is unaccredited institution and you wish to file your H-1B towards fiscal year 2015 (FY15) cap, you should consider filing the H-1B towards the bachelor’s cap of 65,000.  Filing it improperly, towards the master’s cap, may lead to a denial and by the time the H-1B petition is re-filed under the bachelor’s cap, the H-1B numbers may already be gone.

In the past USCIS was lenient in applying the master’s cap rules and approved H-1B towards master’s cap in error even if beneficiary’s degree did not meet the above mentioned requirements but it has now begun to strictly apply the rules to determine if petition should be accepted towards the master’s cap.  In fact, USCIS is taking a second look at the H-1B cases approved in the past under the master’s cap exemption and beneficiary’s of such petitions may face issues when requesting extensions.

Employers and beneficiaries with questions regarding the University from which a degree was earned, are encouraged to contact our office to determine the best course of action to file H-1B towards FY 2015 cap.

[1] Pre-accreditation status is acceptable.

[2] Private or for-profit school is unacceptable.