The H-1B Master’s Cap Is Not for Any US Master’s Degree

There are 85,000 H-1B visa numbers available every year under the H-1B cap, with 20,000 set aside for H-1B petitions where the beneficiary has earned a US master’s or higher degree (INA §214(g)(5)(C); 8 CFR §214.2(h)(8)(ii)(B)). For the US master’s or higher degree to qualify, the institution conferring the degree must be an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 USC §1001(a)), which requires, inter alia, that the school be public or nonprofit and accredited. The consequences are dire if the petition is denied on this basis, since it will bar the employer from filing a new H-1B petition subject to the statutory cap until the following year.

The Higher Education Act at 20 USC § 1001(a) defines a US institution of higher education as an educational institution in any state that:

(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate or persons who meet the requirements of section 1091(d) of this title;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

USCIS relies on the National Center for Education Statistics (NCES) to assist it in making a determination on the school’s eligibility. NCES is the primary federal entity for collecting and analyzing education data in the US and is part of the US Department of Education and the Institute of Education Sciences. At its website at, it provides information about whether the school is public or nonprofit and the number of years of its educational program.

If USCIS makes a determination under 8 CFR § 214.2(h)(8)(ii)(B) that the educational institution is not covered under US master’s cap for H-1B purposes, then it will not refund the filing fees in denying the case. Also, since H-1B cap petitions are filed pursuant to a lottery because of the historic demand far outstripping supply, there is no chance that an H-1B visa number would remain available so that the petitioner could refile under the bachelor’s cap for that fiscal year. Instead, the petitioner would have to wait to file in April of the following year.