A federal immigration appeals board on Wednesday made clear that guest workers seeking a visa available to foreigners with graduate degrees must have earned their degrees from accredited institutions.
The ruling closes a potential loophole in the H-1B visa program that could have opened the door to foreign workers with paper degrees from diploma mills, according to critics of the program.
“It’s not hard to imagine that if this decision had gone the other way, there would be back-of-the-matchbox diploma mills springing up.”
“It’s important in immigration law to define everything,” said Jessica Vaughan, director of policy studies at the Washington-based Center for Immigration Studies. “It’s not hard to imagine that if this decision had gone the other way, there would be back-of-the-matchbox diploma mills springing up.”
The case before the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services involved a company that wanted to hire a foreign computer programmer who had a master’s degree from International Technological University in California. Federal law caps H-1B visas at 65,000 a year but allows another 20,000 to be awarded to people with advanced degrees from U.S. institutions of higher learning.
The USCIS denied the application because International Technological University was not accredited when the would-be employee earned the degree in December 2010. The company appealed, but the appeals board upheld the decision.
“First, requiring beneficiaries to earn their degrees from institutions that, at a minimum, are pre-accredited at the time the degree is earned helps ensure the quality of education necessary to merit a Master’s Cap exemption,” the board decision states.
Leena Kamat, a lawyer who represented the company appealing the denial, did not immediately return a phone call from LifeZette seeking comment. She had argued the application should be accepted since the Western Association of Colleges and Schools granted “candidacy status” to the university in 2011. But the board wrote that accepting such a standard would invite confusion and that the degrees should be considered valid only if the schools were accredited at the time the students earned them.
The appeals board originally ruled on the appeal in December 2013 but limited its impact to that single case. On Wednesday, the board applied the precedent to all future cases. A USCIS spokesman told LifeZette that the Department of Education recently stopped recognizing Accrediting Council for Independent Colleges and Schools as an accrediting agency.
“Stakeholders and field offices sought guidance on how this change would impact immigration benefit adjudications that turn in part on education credentials from accredited universities,” the spokesman wrote in an email. “The AAO identified this earlier decision as on point, and USCIS adopted the decision as instructive guidance.”
Vaughan questioned whether the decision to make the ruling a precedent is the result of a change in presidential administrations. She said the USCIS appeals board under President Barack Obama’a Department of Homeland Security chose not to make it a precedent, “which is curious, because it makes good sense.”
Vaughan said Wednesday’s decision is “cleaning up something that should have been cleaned up by the Obama administration.”
John Miano, a labor lawyer who co-wrote a book in 2015 exposing flaws in America’s immigration system, said such a decision likely is not the direct result of orders by political appointees. He said that most likely, career USCIS employees “laid low” during the Obama administration.
"What's happening now is the career people are saying, 'Look at this.' … They're feeling liberated now," he said.
Miano noted that the USCIS has made other technical changes, such as an announcement in April that it no longer would automatically allow low-level computer programmers to qualify as members of a "specialty occupation" eligible for H-1B visas.
Trump also has directed federal agencies to consider raising visa fees, adjusting wage scales, and changing how visas are awarded, among other reforms that can be undertaken without Congress.
Ira Mehlman, a spokesman for the Federation for American Immigration Reform, said it is one more signal that President Donald Trump's administration is serious about reforming America's visa programs.
"This also might be another example of the administration reviewing various visa categories being used for things other than what was intended," he said.