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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105701
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Hi, I have got an RFE regarding my university, though the university

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Hi, I have got an RFE regarding my university, though the university is accredited i got the RFE as follows
""According to public records Stratford University is for-Profit Institution and therefore does not appear to qualify the U.S Institution of higher education. The qualifying institution must be a Public or Non-Profit Institution"".
I made a mistake while i was joining the university i just checked whether the university is accredited or not, I never knew that i also have to check if it is non-profit school or not. Any suggestions regarding how to answer this RFE?
Hello. Thank you for using our service. All I ask is that before you sign off, you rate me positively. If you are inclined to use the "poor service" or "bad service" options, please ask follow-up questions first and give me a chance. Sometimes the law doesn't have a good solution, but I will try hard to find it if it is available.


What is it that you are applying for? An H-1B professional job through the university?
Customer: replied 3 years ago.

Yes, I have applied for H1-B through university under masters cap.

Well, the law is very clear about that. The exception is if you apply for a cap-exempt job and those are at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization. Those are not subject to this numerical cap. Are you currently under OPT? Are you under STEM? How much time do you have?
Customer: replied 3 years ago.

Well i have time till this December, but does that mean that i have no way of answering this RFE?


 

Are you a STEM graduate? How much time will you have been on OPT in December?
Customer: replied 3 years ago.

Yes i am a STEM graduate. coming back to the question i am trying to avoid the process of maintaining status till next years quota and apply in a regular H1-B cap, I don't want to loose with out fighting it. I tried calling the university to get suggestions on answering this RFE and they responded with a document saying that the college was accredited when i got graduated. Which i think does not help me to answer this RFE. It's just giving me a feeling now that i did masters degree for nothing with wasting 3 years of precious time and money. Please suggest as i don't want to give up on this RFE.

Unfortunately, it isn't an issue of fighting it. It either is a cap-exempt institution or it is not a cap-exempt institution. The law in this regard is found under INA § 214(g)(5) - (11), but primarily, you will look here:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422/0-0-0-3594.html

(5) 2/ The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who 2d/ --


(A) 2e/ is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; 2e/


(B) 2e/ is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization; or 2e/


And here is the link with the definition of an institution of higher learning:

http://www.law.cornell.edu/uscode/text/20/1001

(a) Institution of higher education

For purposes of this chapter, other than subchapter 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, or persons who meet the requirements of section 1091 (d) of this title;

(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, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;

(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 preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation 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.

So the only way you can “fight” it is if you can prove that your institution fits into (a). If it does not, then you would be wasting your time and money. But if you can make a viable argument that it does, then go for it. If not, then you should focus on getting an OPT extension if you can. I know it is not the news that you want to hear and very inconvenient, but the law in this area is complicated and primarily geared to protecting the U.S. job market. I am truly sorry. I wish I had better news for you.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

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