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.
On January 30th, 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.
Effective April 1, 2019, USCIS started selecting 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.
Immigration practitioners, F-1 students, and prospective H-1B employers should note that not 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.
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.
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. First and foremost, the educational institution 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 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 i