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ABCs Of H-1Bs (This Is Part V Of An Viii Part Series): Does My
Master’s Degree Qualify For The H-1B Master’s Cap?<!–END ARTICLE TITLE–>
</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/393228-article-abcs-of-h-1bs-this-is-part-v-of-an-viii-part-series-does-my-master%E2%80%99s-degree-qualify-for-the-h-1b-master%E2%80%99s-cap-by-david-h-nachman-esq-michael-phulwani-esq-and-ludka-zimovcak-esq#bio”>
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David H. Nachman, Esq., Michael Phulwani, Esq. and Ludka Zimovcak, Esq.
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<p>
Many F-1 visa holders, particularly those who are engaged in OPT change
their immigration status to become professional and specialty workers (H-1B
workers). The H-1B cap is the Congressionally-mandated limit on the number
of individuals who may be granted H-1B status during each fiscal year. Most
foreign nationals seeking H-1B nonimmigrant classification are subject to
the 58,200 cap. There are an additional 20,000 H-1B visas, which are
limited to individuals who receive a master’s degrees (or higher degree)
from a United States College or University.
</p>
<p>
On January 30<sup>th</sup>, 2019, The Department of Homeland Security (DHS)
posted a final rule amending regulations governing H-1B cap-subject
petitions, including those that may be eligible for the advanced degree
exemption. As a result, U.S. employers seeking to employ foreign workers
with a U.S. master’s or higher degree will have a greater chance of
selection in the H-1B lottery in years of excess demand for new H-1B visas.
<br/>
<br/>
Effective April 1, 2019, USCIS will first select H-1B registrations
submitted on behalf of all beneficiaries, including those that may be
eligible for the advanced degree exemption. USCIS will then select from the
remaining eligible registrations, a number projected to reach the advanced
degree exemption. Changing the order in which USCIS counts these
allocations will likely increase the number of registrations for
beneficiaries with a master’s or higher degree from a U.S. institution of
higher education to be selected under the H-1B numerical allocations.
<br/>
<br/>
Immigration practitioners, F-1 students, and prospective H-1B employers
should note that <em>not </em>every master’s degree from a United States
College or University qualifies a foreign national for the additional
20,000 H-1B visas under the H-1B “master’s cap”. In order for an individual
to qualify for the master’s cap, a few criteria need to be met. First, the
degree must qualify as a master’s degree. Additionally, the master’s degree
must be issued by a “U.S. institution of higher education” as defined by
section 101(a) of the Higher Education Act of 1965.
</p>
<p>
<br/>
To determine whether a U.S. issued degree is a master’s degree (for
“master’s cap” purposes), USCIS adjudicators consider more than the simple
nomenclature of a degree. The fact that the degree itself is or is not
titled as a master’s degree is, by itself, not dispositive. For instance,
in the field of Chiropractics, the entry-level degree is “Doctor of
Chiropractic”, and a bachelor’s degree in any field is not required prior
to obtaining that degree. On the other hand, attorneys typically hold a
“Juris Doctorate” degree (J.D.) and medical doctors hold a similar “Doctor
or Medicine” degree (M.D.). Prior to earning either a J.D. or M.D. degree,
the holder must first earn at least a bachelor’s degree in some particular
academic field. Accordingly, while neither degree is likely equivalent to a
Ph.D., a J.D. or M.D. degree would be considered to be equivalent to, if
not higher than, a master’s degree.
</p>
<p>
To satisfy the second prong – the master’s degree must be issued by a “U.S.
institution of higher education” as defined in section 101(a) of the Higher
Education Act of 1965. Under this law, the educational institution,
awarding the master’s degree, must satisfy five (5) requirements.<u>First</u> and foremost, the educational institution must be a <em>public or other nonprofit </em>institution. <u>Second</u>, the master’s
degree issuing institution must be accredited by a nationally recognized
accrediting agency or association.
</p>
<p>
<br/>
Moreover, the educational institution must meet the <u>following three</u>
other requirements: (1) the institution 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;
(2) such an institution must be legally authorized within such State to
provide a program of education beyond secondary education; and (3) the
institution must provide 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.
</p>
<p>
<br/>
To illustrate, consider the case of two seemingly equivalent foreign
students – one holding a Master of Business Administration (MBA) degree
from the DeVry University’s Keller School of Management and the other one
from Thunderbird School of Global Management. Since DeVry is a for-profit
private university, holding an MBA degree from the Keller School of
Management will <u>not</u> qualify the foreign student for the Master’s
H-1B cap. The second student who received an MBA from the Thunderbird
School of Global Management will qualify for the Master’s H-1B cap because,
even though Thunderbird is a private business school, it is a nonprofit
educational institution.
</p>
<p>
<br/>
However, note that the student from the Keller School of Management will
qualify for the regular H-1B cap.
</p>
<p>
<br/>
Based on the foregoing, students attending or who intend to attend a
master’s or higher degree program in the United States with the hope that
their master’s degree would qualify him/her for the master’s H-1B cap
should make two specific inquiries: (1) First, he/she needs to determine
whether the educational institution is a private or a public institution;
and (2) Second, he/she needs to determine whether the educational
institution is classified as a not-for-profit or a for-profit academic
institution.
</p>
<p>
<br/>
Holding a master’s or a higher degree from a public educational institution
will always qualify a foreign student for the H-1B master’s cap. However,
when attending a private university/school, it is worth checking to see
whether the educational institution is classified as a for-profit or
non-profit organization. Like public educational institutions, receiving a
master’s (or a higher degree) from a private non-profit educational
institution will qualify the individual for the master’s cap. But, if the
private school/university is a for-profit educational institution, then
having a master’s or higher degree from that institution will not meet the
requirements for the H-1B master’s cap. Having said that, the student would
still qualify for the regular H-1B cap.
</p>
<p>
<br/>
For more information or to have a precise analysis made about whether or
not your case will qualify as a Master’s Cap H-1B nonimmigrant visa case we
invite you to contact the immigration and nationality lawyers and attorneys
at the Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C. by e-mailing us at <a href=”mailto:info@visaserve.com”>info@visaserve.com</a> or by calling us
at <a href=”tel:201-670-0006;107″>201-670-0006 (x107)</a>.
</p>
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<a name=”bio”></a>
About The Author<br/>
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<p>
<a><b>David Nachman, Esq. </b></a>is one of the Managing Attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. The Attorneys in our Law Firm assist clients with waivers, marriage cases, citizenship applications, I-130 sponsorship for family, etc.</p>
<p>
<a><b>Michael Phulwani, Esq. </b></a>is admitted to practice law in New York and India. He has been practicing law for about 40 years in the field of US Immigration and Nationality Laws. He has successfully handled many complex immigration matters with the Immigration and Naturalization Service and Consular Processing cases at American Consulates abroad and especially in India.</p>
<p>
<a><b>Ludka Zimovcak, Esq. </b></a>is a Managing Attorney at NPZ Law Group, PC. Mrs. Zimovcak’s passion for excellence in immigration law derives from her own family’s first-hand immigration experiences. She is fully licensed to practice as an Attorney in Slovakia and New York.</p>
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