On May 31, 2017, USCIS released a memo clarifying that to be eligible for an H-1B cap exemption based on a Master’s Degree, the school from where the beneficiary obtained their degree has to have been a U.S. “institution of higher education” when the degree was earned. The policy memo cites to Matter of A-T- Inc., an “adopted decision,” meaning the decision is binding policy guidance for all USCIS personnel. As you probably know, there are only 65,000 H-1B visas available under the cap each year, with an additional 20,000 for people who have earned a master's degree or higher in the U.S. In their decision, the Administrative Appeals Office (AAO) stated, “[U]nder our interpretation, an individual who earns a degree from a (pre-)accredited institution may continue to qualify for the Master’s Cap exemption even if the institution later closes or loses its (pre-)accreditation status.” This will be an important memo to keep in mind as USCIS has, in some instances, gone back and reviewed a beneficiary’s initial H1B petition – and which cap they were counted under – while adjudicating a current extension. Even when the beneficiary has been in the U.S. for over 5 years.
The USCIS has released the number of cap cases filed through April 7, 2011 and as expected, the number of new cap filings does not come close to reaching the quota . Specifically, 4,500 cap cases were filed toward the Master's quota and 5,900 toward the regular quota. These numbers represent drops of 57% and 21% respectively. This drop is likely attributable to multiple factors including: FY2011 cap only being reached in Jan so fewer filings have been stockpiled, the disruption in the NPTE exam being given to physical therapists educated in India or the Philippines, continued weak hiring in various sectors due to economic factors and the USCIS Neufeld policy that encourages projects being performed at off-shore development centers rather than in the U.S. On the right hand side of this page, you will see "really cool charts" where we will provide updates of the number of cap cases being filed. When the caps are reached, the charts "explode like a volcano" or so I have been promised