A separate cap of 20,000 H-1B’s is allotted for those foreign nationals who were awarded advanced degrees in the U.S. However, not all degrees qualify under this provision. Recently, USCIS has been enforcing this provision very strictly, issuing requests for evidence, denials, and even initiating revocation proceedings for previously approved petitions under the advanced degree cap.

Immigration and Nationality Act (INA) Section 214(g)(5)(c) provides that those foreign nationals who earned a master's or higher degree from a United States institution of higher education can file under the 20,000 cap, which is separate from the 65,000 cap reserved for all other H-1B petitions, with the exception of colleges, universities, and qualifying affiliated institutions who are exempt from the cap altogether. This section further states that only degrees awarded by those institutions which fit the definition set forth in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). This section of the law, in turn, defines a U.S. institution of higher education as a public or other non-profit institution accredited by a “nationally recognized accrediting agency or association" or "granted a pre-accreditation status”. Degrees received from institutions which do not fit this definition, though located in the U.S. and award advanced degrees, do not qualify an H-1B petition to be filed under the 20,000 cap.

In the past USCIS has been liberal in reading this section, rarely rejecting filings made under this cap where the foreign national held an advanced degree awarded in the U.S. However, recently, in following its new policy of strict interpretation and observance of the immigration laws and regulations, USCIS has begun to closely scrutinize these filings, issuing requests for evidence, and even denials where it finds that the institution does not fit within the requisite definition to qualify. What’s more, Greenberg Traurig has been informed that USCIS has begun revocation proceedings for previously approved H-1B petitions, where it determined that it previously approved H-1B petitions under the advanced degree cap in error.

This year’s H-1B filings are once again expected to surpass the amount allotted under both caps within the first week, with USCIS conducting a random lottery to choose H-1B petitions for adjudication, similarly to last year. If a petition is filed erroneously requesting adjudication under the advanced degree cap and is rejected by USCIS, with both caps having been exhausted within the first week of the filing season, it is unlikely to be re-filed for the same fiscal year. Therefore, it is very important to provide all of the academic credentials in connection with the H-1B filing to your GT business immigration and compliance attorney and make sure to speak with them about the requirements involved with the H-1B petition cap filings.