The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year (with 6,800 set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the nationals of Chile and Singapore). An additional 20,000 petitions filed on behalf of beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are exempt from the cap.
Immigration practitioners, F-1 students, and prospective H-1B employers should be aware that not all U.S. master’s degrees qualify for the additional 20,000 H-1B visas under the master’s cap. To be eligible, the degree must meet the criteria for a master’s degree and be issued by a “U.S. institution of higher education” as defined in section 101(a) of the Higher Education Act of 1965.
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 degree itself is or is not titled as a master’s degree is, by itself, not dispositive. For instance, in the field of Chiropractic, 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 doctor” 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.
Further, 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. As such, the educational institution awarding the master’s degree must satisfy five (5) requirements.
First and foremost, the educational institute must be a public or other nonprofit institution. Second, the master’s degree issuing institution must be accredited by a nationally recognized accrediting agency or association.
Moreover, the educational institution must meet the following three other requirements: (1) the institution must admit as regular student 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.
To illustrate, consider a case of two seemingly equivalent foreign students ─ one holding 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 not 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 it’s a private business school, it’s a nonprofit educational institution. However, note that the student from the Keller School of Management will still qualify for the regular H-1B cap.
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 basic inquiries: (1) Whether the educational institution is a private or a public institution; and (2) Whether the educational institution is classified as for-profit or nonprofit.
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 into the issue of 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. However, the student would still qualify for the regular H-1B cap.
At HSD Immigration Lawyer, we specialize in complex employment-, investment- and family-based immigration matters. Contact one of HSD Immigration Lawyer offices in Chicago, IL, Naperville, IL, Raleigh, NC, or Clark, NJ, for additional information about H-1B cap related questions.