dismissed H-1B Case: Dentistry

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-JB- DDS , INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
A dental office seeks to temporarily employ the Beneficiary as a dentist under the H-1 B 
nonimmigrant classification for specialty occupations. 1 See Immigration and Nationality Act (the Act) 
section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-18 program allows a U.S. 
employer to temporarily employ a qualified foreign worker in a position that requires both (a) the 
theoretical and practical application of a body of highly specialized knowledge and (b) the 
attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum 
prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that: ( 1) this is a 
duplicate petition prohibited by 8 C.F.R. § 214 .2(h)(2)(i)(G); and (2) the petition was not properly 
tiled. 
On appeal, counsel submits a brief and additional evidence, and asserts that the Director erred in her 
decision. 
Upon de novo review, we will dismiss the appeal. 
I. BACKGROUND 
The Form I-129, Petition for a Nonimmigrant Worker , listed the name of the Petitioner as 
The Form f-129 requested new full-time employment for the Beneficiary , listed only one work 
address for him. and indicated that an itinerary would not be submitted with the petition. 
The Director issued a notice of intent to deny (NOlO) questioning whether and a related 
entity, . tiled duplicate petitions for the Beneficiary. In response to the NOlO, counsel 
explained that there was no intent to submit duplicate petitions for the Beneficiary. Citing to the 
regulation at 8 C.F.R. § 214.2(h)(2)(i)(C) requiring separate petitions when a beneficiary will 
perform services for more than one employer, counsel reasoned that two petitions were submitted for 
the Beneficiary because he would be concurrently working for and 
1 We will use abbreviated company names for simplicity and privacy purposes. 
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_1\,fatter olM-JB- DDS, Inc. 
On appeal, counsel elaborates that the Beneficiary has been and \vill continue to work for 
and on a full-time basis, which counsel defines as 30 hours per \Veek. 
II. MULTIPLE PETITIONS 
A. Legal Framework 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) prohibits multiple H-lB petitions from being filed in 
the same fiscal year for the same beneficiary by an employer. or, under certain circumstances. by 
'·related entities." 8 C.F.R. § 214.2(h)(2)(i)(G) states, in pertinent part: 
An employer may not tile, in the same fiscal year, more than one H-1 B petition on 
behalf of the same alien if the alien is subject to the numerical limitations of section 
214(g)(l)(A) of the Act or is exempt from those limitations under section 
214(g)(5)(C) of the Act. If an H-1 B petition is denied. on a basis other than fraud or 
misrepresentation, the employer may file a subsequent H-1 B petition on behalf of the 
same alien in the same tiscal year, provided that the numerical limitation has not been 
reached or if the filing qualifies as exempt from the numerical limitation. Otherwise. 
tiling more than one H-1 B petition by an employer on behalf of the same alien in the 
same fiscal year will result in the denial or revocation of all such petitions. If USC IS 
believes that related entities (such as a parent company, subsidiary, or afliliate) may 
not have a legitimate business need to tile more than one H-1 B petition on behalf of 
the same alien subject to the numerical limitations of section 214(g)(l )(A) of the Act 
or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act, USC IS 
may issue a request for additional evidence or notice of intent to deny, or notice of 
intent to revoke each petition. If any of the related entities fail to demonstrate a 
legitimate business need to file an H-1 B petition on behalf of the same alien. all 
petitions filed on that alien's behalf by the related entities will be denied or revoked. 
B. Analysis 
Upon review. we find that the Director properly denied the petition. 
In our view, and are related entities. Their relationship is evident by such 
factors as their common mvnership, utilization of the same management company's services, and 
history of concurrently employing the Beneficiary. 2 While counsel correctly points out that 
and are "separate and independent employers" with different federal tax 
identification numbers. their separate legal existence does not preclude a finding that they are 
'·related'' for these purposes. 
2 These are not exclusive factors. 
2 
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Matter ofM-.JB- DDS. Inc. 
To say that an entity is "related" to another , under the ordinary meaning of the word, is to say that a 
reasonable connection exists between the two. 3 The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) does 
not limit the meaning of "related entities" to a parent company, subsidiary, or affiliate: instead, by 
using ·'such as'' before those terms, it indicates that "related entities" can include. but are not limit ed 
to, those enumerated relationships. We expansively interpret the types of "related entities .. 
encompassed by 8 C.F.R. § 214.2(h)(2)(i)(G) in order to effectuate this provision's remedial 
purposes . 8 C.F.R. § 214.2(h)(8)(ii)(B) (addressing ··the fair and orderly allocation of number s" 
under the H-1B visa lotter y); Petitions Filed on Behalf of H-1B Temporary Workers Subject to or 
Exe mpt from the Annual Numerical Limitation , 73 Fed. Reg. 15389-95 , 15391-93 (Mar. 24, 2008) 
(discussing the practice of petitioners who exploit the system by attempting to increase their chances 
of being selected for cap numbers). See. e.g . Gomez v. Toledo, 446 U.S. 635, 639 (1980) (a 
remedial statute should be construed generously to further its primary purpose) (citing Whirlpool 
Corp. v. Marshall, 445 U.S. 1, 12-13 (1980)). 
Counsel asserts that , to the extent and are related , they had a legitimate 
business need to file separate petitions for the Beneficiary based on their concunent employment for 
him. However , the record does not sufficiently document the terms and conditions of the 
Beneficiary's employment, which undermin es any claim regarding these either entity's legitimate 
need. 
Specifically, both petitions indicated that the Beneficiary will be employed on a full-time basis, but 
the record contains discrepancies regarding the Beneficiary's total number of hours per week per 
location. For example , on appeal counsel asserts that define s ··full-time'' employment as 
30 hours per week pursuant to the Affordable Care Act's mandate in 2015 . Yet August 
2015 employment agreement with the Beneficiar y still indicates that full-time employment is 32 or 
more hours per week. 4 While counsel explains that the employment agreeme nt was signed prior to 
the Petitioner's adoption of the Affordable Care Act definition in 2015, she does not clarify exactly 
when the Petitioner adopted the new definition, nor does she corroborate this claim with objective 
evidence such as an amended employment agreement containing a revised definition. 5 The 
employment agreement is silent as to the Beneficiary's specific pay rate . 
Further, the Form I-129 listed a full-time weekly wage of $2,000 , and the labor condition application 
(LCA/' indicated that the Beneficiary will be paid $51 per hour , which would suggest that based on 
:; For example, Merriam- Wehster Online Dictionm y defines the word "related"' as ·'connected by reason of an established 
or discoverable relation.·· i\4erriam- Webster Online Dictionun·, https:l/www.merriam-webster.com/dictionary/related 
(last visited Dec. 22, 20 17). 
4 
This agreement defines "part-time'' employment as "less than 32 hours a week in the aggregate." 
5 In fact, we note the record's inclusion of original and amended employment with the Beneficiary, dated 
August 2015 and April 2016, respectively. amended agreement still indicates that full-time employment is 
32 or more hours per week. contrary to counsel's claims. 
6 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the ··area of employment' · or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
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Matter of M-.JB- DDS. Inc. 
$2,000 weekly wage, he would work 39 hours per week. On the other hand, the Beneficiary's pay 
statements show an hourly pay rate of $62.50 per hour. The pay statements contain varying amounts 
of pay and unexplained pay categories, and we are unable to how many hours the Beneficiary 
worked during each pay period. For example, for the pay period ti·om April I, 2016, to April I 5. 
2016, the pay categories include "Salary'' of $1,560, ''Regular-Or." categories of $4,610.56 and 
$890, which add up to $7,060.56. At $62.50 pay rate, this suggests that the Beneficiary worked 113 
hours for the two week period or 56.5 hours per week. While the Director advised the Petitioner of 
these wage and schedule discrepancies in her decision, counsel did not sufticiently address these 
discrepancies on appeal. 
Moreover, the employment agreement allows the Beneficiary to provide dental services "at any and 
all other dental practices receiving business support services from - or affiliated companies]." 
By the very terms of his employment agreement, the Beneficiary may provide dental services to 
other. unspecified dental offices under unspecified conditions. This contractual provision opens up 
fm1her questions about the Beneficiary's proposed employment. 
As discussed above, the inconsistencies and ambiguities surrounding the terms and conditions of 
Beneficiary's employment preclude us from assessing the legitimacy of the claimed business need. 
Without more, we conclude that the Petitioner has not demonstrated its legitimate business need and 
overcome the Director's grounds for revoking the approved petition. 8 
Ill. PROPER FILING 
A. Legal Framework 
A petitioner seeking to file an H-1 B petition must meet the definition of a ·'United States employer." 
8 C.F.R. 214.2(h)(2)(i)(A) . See section IOI(a)(15)(H)(i)(b) of the Act (referring to the ''intending 
employer"). According to the regulation at 8 C.F.R. 214.2(h)(4)(ii), the term "United States 
employer'' means a person, firm, corporation, contractor, organization, or other association in the 
United States which: 
(1) Engages a person to work within the United States: 
Matter ofSimeio S'ofurions , LLC, 26 I&N Dec. 542, 545-546 (AAO 2015 ). 
7 Documents in the record identify as a dental support organization which provides administrative and business 
support services (e.g., human resources, recruiting, payroll, and legal support services) to third party dental offices, 
including and 
8 We acknowledge counsel's explanation for why she believed the tiling of two petitions was necessary. If the record 
had credibly demonstrated the Beneficiary's definite, concurrent employment with both entities as claimed. then we 
likely would have agreed with counsel's position under those circumstances. However. we cannot reach that conclusion 
here. As discussed above, the inconsistencies and ambiguities surrounding the terms and conditions of Beneficiary's 
employment undermines the legitimacy of the claimed business need. 
4 
Matter (~f M-.JB- DDS, Inc. 
(2) Has an employer-employee relationship with respect to employees under this 
part, as indicated by the fact that it may hire. pay. fire. supervise, or otherwise 
control the work of any such employee: and 
(3) Has an Internal Revenue Service Tax identification number. 
Under certain circumstances. a "United States agent'" may file a petition as a United States employer. 
More specifically, the regulation at 8 C.F.R. § 214.2(h)(2)(i)(F) states: 
A United States agent may file a petition in cases involving workers who are traditionally 
self-employed or workers who use agents to arrange short-term employment on their behalf 
with numerous employers, and in cases where a foreign employer authorizes the agent to act 
on its behalf. A United States agent may be: the actual employer of the beneficiary. the 
representative of both the employer and the beneficiary, or. a person or entity authorized by 
the employer to act for, or in place of. the employer as it[s] agent. A petition tiled by a 
United States agent is subject to the following conditions[:] 
(1) An agent performing the function of an employer must guarantee the wages and 
other terms and conditions of employment by contractual agreement with the 
beneficiary or beneficiaries of the petition. The agent/employer must also 
provide an itinerary of definite employment and information on any other 
services planned for the period of time requested. 
(2) A person or company in business as an agent may file the H petition involving 
multiple employers as the representative of both the employers and the 
beneficiary or beneficiaries if the supporting documentation includes a complete 
itinerary of services or engagements. The itinerary shall specify the dates of each 
service or engagement, the names and addresses of the actual employers. and the 
names and addresses of the establishment venues, or locations where the services 
will be performed. In questionable cases, a contract between the employers and 
the beneficiary or beneficiaries may be required. The burden is on the agent to 
explain the terms and conditions of the employment and to provide any required 
documentation. 
Whether filed by a qualifying United States employer or agent. the regulation at 8 C.F.R. 
§ I 03.2(a)(2) requires a valid signature on the Form 1-129 (and other required forms). By signing 
the benefit request the petitioner certifies under penalty of perjury that the benefit request. and all 
evidence submitted with it either at the time of filing or thereafter, is true and correct. !d. 
B. Analysis 
Upon review of the record, we also conclude that the record docs not demonstrate that the H-1 B 
petition was properly tiled. 
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Matter of M-JB- DDS', Inc. 
As indicated above, an H-1 B petitioner must qualify as either a United States employer, or a United 
States agent. Here, there is some confusion regarding who the Petitioner is.
9 
While is 
named as the Petitioner, a representative of signed all attestations on the Form I-129 and 
accompanying forms in the spaces reserved exclusively for the "Petitioner'' or an "Authorized 
Official of Employer.'' The support letter submitted with the petition is from and speaks of 
as "part of' while also speaking of the Beneficiary as becoming part of "'our 
professional statl'' (emphasis added). The NOID and appellate responses were submitted by 
of whose Forms G-28, Notice of Entry of Appearance as Attorney or 
Accredited Representative, were signed by a representative of See 8 C.F.R. ~ 292.4(a) (the 
Form G-28 must be properly completed and signed by the Petitioner). If is the Petitioner. then we 
must question whether it qualities as a "United States employer'' pursuant to 8 C.F.R. 
214.2(h)( 4 )( ii). 
Assuming that is the Petitioner. then we must conclude that or its authorized 
representative did not properly sign this 
petition, as required. 8 C.F.R. ~ 1 03.2(a)(2). Instead. a 
representative of completed all requisite signatures. Because the petition was not properly 
signed, it was not properly filed. 
On appeal, the Petitioner contends that properly signed all forms as its agent, and submits an 
"Agent Authorization for (agent agreement) in which it designated as its ··agent." 
However, the record is insufficient to support the conclusion that qualified as a ''United States 
agent" for H-1 B purposes. Foremost the agent authorization submitted on appeal was not etTective 
until October 20 16; thus it was not valid as of this petition's filing date in Apri I 2016. The Petitioner 
must establish eligibility at the time offiling the nonimmigrant visa petition. 8 C.F.R. ~ 103.2(b)(l ). 
Therefore, the agent authorization on appeal did not cure the petition's defective filing. 
Even if we could overlook this fundamental deficiency, we still could not determine that 
qualified as a "United States agent" for other reasons. The record does not identify which type of 
agent qualified as, i.e., whether this case involved a worker who is traditionally self-employed 
or a worker using an agent to arrange short-term employment with numerous employers. 8 C.F.R. ~ 
214.2(h)(2)(i)(F). 
Nor does the record establish that qualified as an agent performing the function of an employer 
under 8 C.F.R. ~ 214.2(h)(2)(i)(F)(l), or an agent representing multiple employers under 8 C.F.R. ~ 
214.2(h)(2)(i)(F)(2). Under 8 C.F.R. ~ 214.2(h)(2)(i)(F)(l), the agent is required to "guarantee the 
wages and other terms and conditions of employment by contractual agreement with the 
beneficiary." The record does not contain any contractual agreement between and the 
9 
According to publicly available records, the Petitioner changed its corporate name. See enclosed print-out. While we 
have not considered this change in our decision, we note it for future reference in the event that the Petitioner"s name 
change reflects a change to its corporate structure that would require a new or amended petition and a new labor 
condition application. See section 214( c)( I 0) of the Act; 8 C.F.R. ~ 214.2(h)(2)(i)(D), (E); 20 C.F.R. ~ 655. 730( e )(2). 
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Matter of M-JB- DDS. Inc. 
Beneficiary. 8 C.F.R. § 214.2(h)(2)(i)(F)(2) states that the agent may represent ''both the employers 
and the beneficiary:' and in questionable cases. ··a contract between the employers and the 
beneficiary'' may be required. While there is an employment contract between the and the 
Beneficiary, the record does not sufficiently establish that also represents the Beneficiary, and 
moreover, reflect the terms and conditions of the employment. 
Further, an agent must submit an "itinerary of definite employment:' 8 C.F.R. § 214.2(h)(2)(i)(F)(l). 
or a ''complete itinerary of services or engagements," 8 C.F.R. § 214.2(h)(2)(i)(F)(2). When read in 
conjunction with the general itinerary requirement at 8 C.F.R. § 214.2(h)(2)(i)(B). the agent­
provided itinerary must contain, at a minimum, the dates and locations of the services the beneficiary 
will provide for the entire period of time requested. There is no such itinerary here. 
Short of conveying "definite'' or "complete" information about the proposed employment, as noted, 
the Petitioner has not sufficiently documented the terms and conditions of the Beneficiary's 
employment, including his hourly rate and total number of hours per v,reek per location. Taken as a 
whole, the record does not contain an itinerary, much less a complete itinerary of definite 
employment. 8 C.F.R. § 214.2(h)(2)(i)(B): 8 C.F.R. § 214.2(h)(2)(i)(F). Accordingly, the record 
does not demonstrate that qualified as a United States agent, and that the Petitioner properly 
tiled the H-1 B petition. 
IV. CONCLUSION 
The Director properly denied the petition pursuant to 8 C.F.R. § 214.2(h)(2)(i)(G ). Further, the 
petition was not properly tiled. 
ORDER: The appeal is dismissed. 
Cite as Matter o{M-JB- DDS. Inc .. ID# 217892 (AAO Dec. 22, 2017)