USCIS Issues Ruling to Clarify Master’s Degree H1B Visa Exemption

It seems that every day there is a new ruling or limitation on H1B visas, as the Trump administration clamps down on visa abuses through immigration agencies.  This is an interim strategy while there is pending legislation to actually change the H1B visa program’s underlying laws, and only requires the agencies to enforce current regulations with a more stringent approach.

However, the agencies in question such as the USCIS may be going a bit too far and denying visas to highly qualified applicants, even those with advanced degrees earned in the US.

The Master’s Degree Exemption

The latest ruling from the USCIS covers the allocation of 20,000 H1B visas annually for Master’s degree holders, which is administered separately from the lottery of 65,000 open slots.  The criteria to qualify for this exemption is that the applicant must have earned their Master’s degree at an accredited ‘United States institution of higher education’, according to the H1B visa regulations.

This is a simple enough requirement, but a recent applicant with a Master’s degree had been denied a visa based on the “accreditation” of the university they attended.  The applicant graduated from the International Technological University (ITU) in December of 2010. At that time ITU was not accredited, but received accreditation a few months later in 2011.  Since the applicant was awarded a Master’s degree prior to ITU’s official accreditation, they did not qualify for the H1B exemption and were denied a visa after a review of their case.

Strict Interpretation of H1B Visa Rules May Undermine the Program’s Purpose

This case underscores just how effective a strict application of existing H1B visa rules can be in limiting the award of a work visa to some applicants.  The fact that ITU became accredited shortly after the degree was awarded was insufficient to recognize that the applicant had earned an advanced degree in the US at a university.

Unfortunately, this decision runs counter to Trump’s stated vision of hiring the ‘best and brightest’ foreign workers, especially those that are educated right in the US.  It would be a more practical application of the rules to allow a Master’s exemption if the university were accredited at the time the petition is submitted, since that would confirm the quality of the educational degree and training that was recieved.

Nonetheless, the federal agencies that administer the H1B visa program have been given specific orders to scrutinize applications to ensure they meet existing guidelines.  This is supposedly to eliminate H1B visa fraud and abuses, but there appear to be some unintended consequences with this practice.

In the case of the applicant from ITU, if they had simply graduated a few months later they would now be happily working in the US for a sponsor, and offering their educational background to support a US business.  Instead, their Master’s degree has no value for qualifying for a slot in the 20,000 visa annual exemption, an outcome they probably did not anticipate when spending years studying for a specialty STEM occupation.

This wont be the only example to emerge in the coming months, as federal immigration and labor agencies begin to flex their newly granted power to deny visas based on the slightest deviation from H1B visa rules.  Naturally, the applicant in this case can still enter the lottery of 65,000 visas, but with over 200,000 petitions submitted the odds are not good of being selected.  

If you have questions about the H1B visa program, the lottery and Master’s degree exemption, please contact us at any time.

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  • July 24th, 2019
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