What is an “institution of higher education” for the purposes of H-1B Master’s Cap?

By February 19, 2021H-1B and E-3 Visa
Image courtesy of Nguyen Hung Vu on Flickr (labeled for reuse) https://www.flickr.com/photos/vuhung/14565350736

Immigration and Nationality Act states that an H-1B Beneficiary who wants to qualify under the “Master’s Cap” had to earn a Master’s or higher degree from a United States institution of higher education.”

The question then arises:

What is an institution of higher education? Where do I find the definition?

Institution of higher education must meet all of the following criteria:

(1) It must admit 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.

When a foreign prospective H-1B employee has a Master’s degree from a U.S. University, it is extremely important that an attorney/an H-1B employer completes a detailed analysis whether the person indeed can qualify under the H-B Master’s cap, meaning, whether the institution where the prospective H-1B employee obtained the Master’s (or higher degree) is indeed an institution of higher education. It is extremely important that this analysis is completed before the H-1B registration is filed, as one of the questions on the H-1B registration is whether the person is applying under the Master’s cap.

From our experience, the most common criterion that is not met is that the university is private, for-profit university. If that is the case, the H-B prospective employee would unfortunately not meet the definition of the institution of higher education and could not qualify under the H-1B Master’s cap.

Please also note that we have also heard of cases when an H-1B employer is filing for an extension and USCIS denies the extension as the beneficiary did not qualify under the Master’s cap in the first place (e.g. Beneficiary obtained a degree from a private for profit university). That’s why it is extremely important to do the analysis whether the institution the Beneficiary received the degree from before the initial H-B registration is filed with USCIS.

Please click here  to read our Questions and Answers about the 2021 H-1B registration.

Please click here to find out whether the H- B worker has to be a W-2 employee.

Please click here to read our  H-1B Questions and Answers blog post.

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