New Adopted Decision Clarifies Degree Requirements for Master’s-Cap H-1B Petitions
New Adopted Decision Clarifies Degree Requirements for Master’s-Cap H-1B Petitions
For those seeking to move to the US on an employment visa, there is always need to gain as much clarity on visa requirements as possible. It is thus important to keep up with development emanating from the USCIS. Following the USCIS can help you prepare for the visa application process. That is why we at RunRex.com have decided to take some time and break down the recent decision regarding the Master’s cap for H-1B visa applications.
Understanding the Issues
To determine the eligibility of an applicant from the H-1B cap based on a Master’s or higher, the USCIS clarified that the conferring university must be US-based when the degree was earned. That means it will not merely be based on the time of adjudication of a petition. This new rule resulted from a decision made by the Administrative Appeals Office of the USCIS.
Background on this Visa
The H1-B is amongst the most popular visas outside of immigrant-based visas. US companies that seek to employ a foreigner with specialty skills for about seven years use it. The US company makes the petition on behalf of the employee with the alien worker being the beneficiary.
As it stands today, there is a cap of 65,000 people. This limitation is known as the H1-B quota. However, if a beneficiary has a master’s degree from the US, they are exempt from this quota. Even this so-called exception has a cap of 20,000 H1-B visas every year.
The Immigration and Nationality Act requires that a beneficiary must have obtained a qualifying graduate degree. The parameters for what is a degree are defined in the higher education legislation. It defines it as a US institution of higher education that has been accredited. Thus, to be eligible, H1-B beneficiaries should have obtained the degree from an American college or university.
What Led to the Ruling?
The ruling arose from a petition that an H1-B applicant made to the AAO. In the petition, it was argued that the beneficiary had earned a master’s degree. However, the conferring institution had not accredited or pre-accredited at the time the alien received their degree. The petitioner argued that they should not be denied a visa based on these grounds.
According to the petitioner, the conferring institution only needed to adhere to the definition of a qualifying US institution at the time of adjudication. Thus, the institution need not have been accredited at the time the degree was awarded.
The Findings of the Appeal
The AAO refused to grant the appeal. They argued that while the statute did not address the issue of the college or university at the time of conferring the degree, the authority would rule that qualifications by the institution must be met at the time of conferring a degree.
One of the reasons for this was to ensure that the conferring institution should be at least pre-accredited to ensure quality. There was also the flip side of the issue. If an applicant of an accredited institution had the institution at which they studied, lose their accreditation. This would be quite injurious to applicants who had studied at an institution, which was of high quality at the time they go their degree. It would have created a lot of uncertainty for many applicants.
What the Experts Think
According to immigration experts, this is just a series of changes, both proposed and enacted that are targeted at the H-1B program. Indeed, it is unlikely that controversy around the H1-B program will dissipate anytime soon.
However, on its own, this decision will provide a lot of clarity for both employers and foreign workers. It ensures that there is objectivity when weighing the quality of an alien’s education. It also provides clarity for applicants before they can find and apply for a job. Since the process is so rigorous, it can help save everyone a lot of time by eliminating ambiguity.
Always Have an Attorney by Your Side
For decades, immigration attorneys have represented employees and employers seeking to have foreign workers in their companies. Lawyers have a higher rate of success because they are able to track all policy developments just as they happen. They analyze every decision and clarify how it could affect the application process.
An H1-B visa is an important tool for companies that need foreign workers to fill in gaps in their workforce. In most cases, they will offer you a free case evaluation and tell you your chances of success.
What the ruling Says in summary
In short, an institution must be qualified and accredited or pre-accredited when the student is studying there. Thus, it is up to immigrants who wish to work in the US in the future to choose the right institution. They must confirm that it has the proper legal recognition in the US. No doubt, it will play a huge role in how students choose universities and colleges in the US in future.
