USCIS, H1bs and US Degrees

We have seen some disturbing trends in recent H1b Requests for Evidence (RFE) where the USCIS is questioning the Beneficiary’s (employee) education. Specifically, two recent types of RFEs have started to make their way out of the California Service Center. The first looks to the accreditation of the educational institution that the Beneficiary graduated from. More often, you see this where someone has gone to a non-accredited school and has applied for an H1b in the Master’s quota. The USCIS will issue a Request for Evidence in which they state that the school is unaccredited and they will request a degree from an accredited master’s program, which for most people, is not possible. This is not the disturbing trend – this is something that is in the regulations, but was not being enforced until recently. The disturbing trend is that they are issuing RFEs when a Beneficiary files an extension of status which state that they made a gross error previously when they approved the Beneficiary’s original H1b in the Master’s Quota and that they are in the process of revoking the H1bs. This RFE was shared with me by a friend of a client and when I followed up with the person to see how it turned out, he said that they re-filed it and it was approved. This sends mixed signals as on the one hand, you have an RFE in which they state that they are in the process of revoking the H1bs for a certain school and then you find that they approve the same case 2 weeks later.

The other disturbing trend has to do with whether the school qualifies as an Institution of Higher Education as defined by the Higher Education Act of 1965 Section 100(a). That term and definition is used to qualify for the Master’s quota. In order to qualify the school must meet these requirements:

(a) INSTITUTION OF HIGHER EDUCATION- For purposes of this Act, other than title IV, the term `institution of higher education’ means an educational institution in any State that–
(1) admits 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) 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;
(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 pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation 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.

The recent RFEs seem to attack the 4th requirement regarding public or non-profit institutions. Some schools are for-profit and despite the fact that they are accredited, they do not qualify under the definition of an Institution of Higher Education that is used for determining eligibility for the Master’s quota. Again, we are seeing them issue a Notice of Intent to Deny (NOID) on an H1b extension or transfer that says that they made a gross error when they counted the Beneficiary against the Master’s quota and they are in the process of revoking the H1bs for that school.

So with all of this said, it seems that the USCIS is getting around to enforcing the regulations more strictly, especially in this area and it is important for a potential student to make an informed decision when deciding upon a degree program and school. Research the school and make sure it meets the requirements above and that it is accredited if you intend to use that degree towards an H1b and an employment-based green card. Next, article, we will discuss CPT and OPT Employment.


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