The numerical limitations on H-1B visa issuance shall not apply to any nonimmigrant alien issued a visa or otherwise provided H-1B status who “has earned a master’s or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000.”
This language modified the Immigration and Nationality Act back in 2004 to create what we commonly refer to as the “Master’s Cap” for H-1B petitions. The statute specifies that only degrees from U.S. institutions of higher education will make an individual eligible for the extra 20,000 visas. So, what qualifies as an “institution of higher education”?
According to section 101(a) of the Higher Education Act, an institution of higher education is an educational institution that is, among other things:
1) a public or other nonprofit institution
AND
2) accredited by a nationally recognized accrediting agency or association
Under this definition, a university that is private and for-profit or that is unaccredited is not considered an institution of higher education.
But what happens if your public or nonprofit school loses its accreditation after graduation? Will you still be considered to have earned a master’s or higher degree from a US institution of higher education for purposes of qualifying for the H-1B Master’s cap?
This is a common question these days in light of the Department of Education’s recent decision to no longer recognize ACICS as an accrediting agency. As far as I am aware, USCIS has not issued any guidance on the subject. The Study in the States website only addresses F-1 students who are currently attending an ACICS-accredited schools and wanting to participate in STEM OPT in the future. No indication is given about students who have already graduated. The Department of Homeland security is letting the Department of Education take the lead on the issue.
The good news is that the Department of Education has written on the topic on their official blog. On a page dedicated to the impact of ACICS’ loss of accreditation, the Department of Education indicates that a degree issued by a school that was accredited at the time of graduation would not be compromised:
“I already graduated from an ACICS-accredited school. Is my degree compromised?
Nobody can take away the hard work you put in or the skills you gained. Your school was accredited when you earned your degree, and you’ll never have to return your certificate or diploma. “
US News & World Report, well-known for its annual rankings of colleges, also reported on the ACICS accreditation story and stated that “an accreditor losing recognition has no effect on existing degrees or certificates.”
The H-1B filing in the Master’s cap appears to remain an option for those who graduated from ACICS-accredited schools prior to the school’s loss of accreditation. The major impact of the ACICS accreditation issue for students who have already graduated is on the ability to obtain a STEM extension of OPT. F-1 students applying for the 24-month STEM extension must use a degree from an accredited, SEVP-certified school as the basis of their STEM OPT extension. The school must be accredited both at the time of graduation and at the time the student applies for the STEM extension. It may still be possible to qualify for the STEM extension if the school is able to secure accreditation through another agency by the time the STEM extension needs to be filed.