On May 31, 2017, USCIS published a memo adopting a decision from the Administrative Appeals Office (AAA) clarifying the criteria for eligibility under the H-1B cap exemption based on a master’s degree. The policy memo called the AAO’s decision of Matter of A-T-Inc. an adopted decision because it is meant to provide guidance to all agency employees.
H-1B cap exemption is extremely important, since there are only 65,000 H-1B visa numbers available each year under the cap to those with a bachelor’s degree or equivalent and an additional 20,000 to those who have a US master’s degree or higher. Once the cap has been reached, a foreign national may only obtain H-1B status if working for a cap-exemption institution (such as institutions of higher education or nonprofits affiliated with them) or if not subject to the cap (e.g. is the beneficiary of an extension of H-1B status).
The AAO, which is a branch of USCIS, held that in order to qualify under the H-1B cap exemption based on a master’s degree or higher, the institution conferring the degree must have counted as a “United States institution of higher education” when the foreign national beneficiary’s degree was awarded. It reasoned that requiring preaccreditation “helps ensure the quality of education necessary to merit a master’s cap exemption.”
The AAO also held that if the beneficiary was not eligible for the master’s cap exemption then a visa number under the regular cap would not be available if the regular cap had already been reached.