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  • Matthew Kolodziej

The U.S. Master’s Cap for H-1B Visas and the Definition of Institution of Higher Education

Potential H-1B applicants should meet the requirements to apply for the visa, one being that they must have an advance degree from a U.S. institution of higher education. However, not all colleges, universities, or other educational institutions fall into this category as defined by the U.S. code. Before applying for the H-1B visa, it is vital to make sure one's advanced degree is from a reputable institute as defined by law. Here, we explore the definition of an institution of higher education.

As the deadline approaches for filing petitions for the H-1B visa cap for the 2019 financial year employers hiring skilled foreign nationals must strategize to maximize their chances for obtaining one of the limited number of H-1B visas. The H-1B is limited to 65,000 visas per year, with an additional 20,000 for recipients of advanced degrees, defined as master’s level degrees or higher, from U.S. colleges and universities. Applicants with a qualifying advanced degree have a clear advantage in the lottery for the limited number of H-1B visas because applications for the master’s cap are chosen first, and if they do not receive one of the 20,000 visas allotted for advanced degrees, they are re-entered in to the regular lottery for the remaining 65,000. However, not all college, universities, or other educational institutions necessarily qualify their students for these additional H-1B visas.

To qualify for the master’s cap the applicant must have an advance degree from a U.S. institution of higher education as defined by section 1001(a) of the Title 20 of the U.S. Code, which defines an institution of higher education as a properly accredited institution providing post-secondary school (high school) education, that must be either a public, state-run institution, or a private non-profit. Therefore, if the school is not a public institution and is for-profit, beware; it will likely not qualify for the master’s cap. Note also that U.S. schools are accredited by a confusing array of accrediting bodies at both the national and regional level, and these accreditations vary widely in credibility. Note that in the United States regionally accredited institutions are generally more prestigious than nationally accredited ones, and therefore regionally accredited schools are more likely to pass muster with U.S. Citizenship and Immigration Services (USCIS). The U.S. Department of Education maintains a list of recognized accrediting organizations that can be found here.

The master’s cap can provide an applicant with an edge in the H-1B visa lottery as long as the advanced degree is from a reputable, accredited public or other non-profit institution that will pass muster with USCIS. In addition to the master’s cap, skilled foreign nationals and the employers that would like to hire them should also consider other cap exemptions, which we discuss here, or and all other H-1B issues and visa options based on extraordinary ability or employment abroad with international companies, discussed here, in order to maximize their opportunities. Students who do not get selected in the H-1B lottery with degrees in science, technology, engineering, or mathematics (STEM) may be qualify for additional extensions of their student work permit to allow them to re-apply in later years. Strategizing and planning with the attorney and employer is essential to success in a challenging immigration climate.


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