This appeal was not successful at this stage
The AAO dismissed the appeal because the petitioner failed to establish that the beneficiary's degree-granting institution qualified as a U.S. institution of higher education under the Higher Education Act, specifically failing to show it was a public or nonprofit institution. The institution's own accreditation documents identified it as 'private (for-profit).'
The petitioner sought to employ the beneficiary under the H-1B classification and claimed a cap exemption based on her U.S. master's degree in social innovation. SCOPS denied the petition after the petitioner failed to demonstrate the degree-granting institution was a public or nonprofit institution as required by the Higher Education Act. On appeal, the petitioner argued the school's accreditation and open admission policy made it 'public,' but submitted no evidence to support this claim. Critically, the petitioner's own submitted document from the Middle States Commission identified the institution as 'private (for-profit).' The AAO dismissed the appeal, affirming that accreditation alone does not satisfy all five requirements of the Higher Education Act, and the record affirmatively contradicted the petitioner's public/nonprofit argument.
What failed: 1. The petitioner focused exclusively on the school's accreditation status, failing to address whether it was a public or nonprofit institution — one of five required criteria under the Higher Education Act. 2. The petitioner's own submitted evidence (the Middle States Commission statement) identified the institution as 'private (for-profit),' directly undermining its appeal argument. 3. Counsel's assertion that the school was 'open to the public' and therefore qualified as a 'public' institution was unsupported by any documentary evidence and was given no weight.
Takeaway: When claiming the H-1B advanced-degree cap exemption, petitioners must affirmatively document that the degree-granting institution satisfies all five criteria of the Higher Education Act — especially public or nonprofit status — not just accreditation. Petitioners should review all submitted documents carefully to ensure they do not contradict the legal arguments being made.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating H-1B criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The petitioner focused exclusively on the school's accreditation status, failing to address whether it was a public or nonprofit institution — one of five required criteria under the Higher Education Act
- The petitioner's own submitted evidence (the Middle States Commission statement) identified the institution as 'private (for-profit),' directly undermining its appeal argument
- Counsel's assertion that the school was 'open to the public' and therefore qualified as a 'public' institution was unsupported by any documentary evidence and was given no weight.
Completed
I-129 filed
Employer seeking to hire a foreign worker with a Master of Fine Arts in Social Innovation
Completed
SCOPS — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2026-04-29
AAO decision — Dismissed
The AAO dismissed the appeal because the petitioner failed to establish that the beneficiary's degree-granting institution qualified as a U.S. institution of higher education under the Higher Education Act, specifically failing to show it was a public or nonprofit institution. The institution's own accreditation documents identified it as 'private (for-profit).'
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.