dismissed H-1B Case: Dentistry

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-JB-D- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC . 22, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-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 . See Immigration and Nationality Act (the Act) 
section 10l(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(I5)(H)(i)(b). The H-IB 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 revoked the approval of 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 1-129 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 . 
After initially approving the petition, the Director issued a notice of intent to revoke (NOIR) 
questioning whether . and a related entity, filed duplicate petitions for the 
Beneficiary. In response to the NOIR, 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 
1 
We will use abbreviated company names for simplicity and privacy purposes. 
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Matter qf M-JB-D- Cmp . 
reasoned that two petitions were submitted for the Beneficiary because he will be concurrently 
working for and 
On appeal, counsel elaborates that the Beneficiary has been and will continue to work for 
and on a full-time basis, which counsel defines as 30 hours per week. 
II. MULTIPLE PETITIONS 
A. Legal Framework 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) prohibits multiple H-IB petitions from being filed in 
the same fiscal year for the same beneficiary by an employer, or. under cet1ain circumstances. by 
"related entities." 8 C.F.R. § 214.2(h)(2)(i)(G) states, in pertinent part: 
An employer may not file. 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)(J )(A) of the Act or is exempt from those limitations under section 
214(g)(5)(C) of the Act. If an H-IB 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 fiscal year, provided that the numerical limitation has not been 
reached or if the tiling qualifies as exempt from the numerical limitation. Otherwise, 
tiling more than one H-18 petition by an employer on behalfofthe 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 affiliate) may 
not have a legitimate business need to file more than one H-1 B petition on behalf of 
the same alien subject to the numerical limitations of section 214(g)( I )(A) of the Act 
or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act, USCIS 
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 tile an H- 1 B petition on behalf of the same alien. all 
petitions filed on that alien's behalf by the related entities will he denied or revoked. 
B. Analysis 
Upon review, we conclude that the Director properly revoked the petition . 
In our view, and are related entities. Their relationship is evident by such 
factors as their common ownership, utilization of the same management company's services, and 
history of concurrently employing the Beneficiary? While counsel correctly points out that 
and are "separate and independent employers" with different federal tax 
2 These are not exclu sive factor s. 
2 
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Malter ~fM-JB-D- Corp. 
identification numbers, their separate legal existence does not preclude a finding that they are 
··related .. for these purposes. 
To say that an entity is "re lated" 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 at1iliate: instead , by 
using "such as" before those terms , it indicates that "re lated entities '· can include , but are not limited 
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 effectu ate this provision's remedial 
purposes. 8 C.F.R. § 214.2(h)(8)(ii)(B) (addressing ''the fair and orderly allocation of numb ers .. 
under the H-1B visa lottery); Petitions Filed on Behalf of H-lB Temporary Workers Subject to or 
Exempt 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 chanc es 
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 purpos e) (citing Whirlpool 
Corp. v. Marshal/,445 U.S . 1,12-1 3 (1980)) . 
Counsel asserts that, to the extent and are related. they had a legitim ate 
business need to tile separate petitions for the Beneticiary based on their concurrent employment for 
him. However, the record does not sufficiently document the term s a nd conditions of the 
Beneficiary's employm ent, which undermines any claim regarding either entity's legitimate need. 
Specifically, both petitions indicated that the Beneficiary will be employed on a full-time basi s, but 
the record contain s discrepancies regarding the Beneficiar y' s total numb er of hours per week per 
location. For example , on appeal counsel asse11s that the Petitioner defines '·full-time'' emplo yment 
as 30 hours per week pursuant to the Affordable Care Act's mand ate in 2015. Yet 
April 2016 employment agreement with the Beneficiary, which superseded the original August 2015 
employment agreement , still indicates that full-time employment is 32 or more hours per week. 4 
The employment agreement is silent as to the Beneficiary's specific pay rate. 
Further, the Form l-129 listed a full-time weekly wage of $2,000, and the labor condition application 
(LCA) 5 indicated that the Beneficiary will be paid $51 per hour. which would suggest that based on 
3 For example, Merriam- Wehster Online Dictionary defines the word "related" as ··connected by reason of an established 
or discoverable relation.'' Merriam- Webster Online Dictionmv, https:f/www.metTiam-webster.com/dictionary/related 
(last visited Dec. 22, 20 17). 
4 
Both the original and current employment agreements define "part-time" employment as ''less than 32 hours a week in 
the aggregate.'' Counsel explains that the original employment agreement was signed prior to the Petitioner's adoption 
of the Affordable Care Act definition in 2015, but does not explain why the Petitioner's written definition did not change 
upon the amended employment agreement in April 2016. 
5 The Petitioner is required to submit a certified LC A 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. 5iee 
Matter o(Simeio Solutions, LLC, 26 l&N Dec. 542, 545-546 (AAO 20 15). 
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Matter qf M-JB-D- Corp. 
$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 and a semi-monthly salary of $1,560, which 
would suggest that based on a $780 weekly wag e, he would work no more than 13 hours per week . 
While the Director advised the Petitioner of these wage and schedule discrepancies in her decision , 
counsel did not sufficiently address these discrepancies on appeal. 
Moreover , the employment agreement allows the Beneficiary to provide ~ental services "at any and 
all other dental practices receiving business support services from I or atli liated companies].·· 
By the very terms of his employment agreement, the Beneficiary may provide dental services to 
other, unspecified dental oftices under unspecified conditions. This contractual provision opens up 
further questions about the Beneficiary's proposed employment. 
As discussed above , the inconsistencies and ambiguities surrounding the terms and condition s of 
Beneficiary's employment preclude us from assessing the legitimac y of the claimed busines s 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 . 7 
III. PROP ER FILING 
A. Legal Framework 
A petitioner seeking 
to tile 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 10l( a)( l5)(H)(i)(b) ofthe 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" mean s a perso n, firm , corporation, contractor, organization, or other association in the 
United States which: 
(1) Engages a person to work within the United States: 
(2) Has an employer-employee relationship with respect to emp loyees under this 
part. as indicated by the fact that it may hire, pay, fire. superv ise, or otherwise 
control the work of any such employee ; and 
(3) Has an Internal Revenue Service Tax identification numb er. 
c, 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 
7 
We acknowledge counsel's explanation for why she believed the filing 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 of'M-JB-D- C 'orp. 
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. 9 214.2(h)(2)(i)(F) states: 
A United States agent may tile a petition in cases involving workers who arc 
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 filed by a United States agent is subject to the 
following conditions[:] 
(I) 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. 
§ 103.2(a)(2) requires a valid signature on the Form I-129 (and other required forms). By signing 
the benefit request, the petitioner certifies under penalty of pe1:jury 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 does not demonstrate that the H-1 B 
petition was properly filed. 
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Matter of M-.JB-D- Corp. 
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.8 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 
OHicial 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 statT' (emphasis added). The NOIR 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. § I 03.2(a)(2). Instead. a 
representative of completed all requisite signatures. Because the petition was not properly 
signed, it was not properly tiled. 
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 et1ective 
until October 2016; thus it was not valid as ofthis petition's tiling date in April2016. The Petitioner 
must establish eligibility at the time of tiling the nonimmigrant visa petition. 8 C.F.R. § I 03.2(b )( 1 ). 
Therefore, the agent authorization on appeal did not cure the petition's defective tiling. 
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)(J), 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)(J), 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 
8 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)(IO) ofthe 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<![ M-JB-D- ( 'm1J. 
Beneficiary. 8 C.F.R. § 214.2(h)(2)(i)(F)(2) states that the agent may represent "both the employer s 
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 suffici ently establish that also represents the Benefici ary, 
and moreover , reflect the terms and condition s ofthc employment. 
Further, an agent must submit an "itinerar y of defi nite 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 benefici ary 
will provide for the entire period of time request ed. There is no such itinerary here. 
Short of conveying "definite" or "complete" information about the propo sed employment, as noted , 
the Petitioner has not sufficiently documented the terms and condition s of the Beneficiary' s 
employment includin g his hourl y rate and total number of hours per week per location. Taken as a 
whole , the record does not contain an itinerar y, much less a definite or complete itinerar y. 8 C.F.R. 
§ 214.2(h)(2)(i)(B); 8 C.F .R. § 214.2(h)(2)(i)(F). Acco rdingly , the record does not demonstr ate that 
PDS qualified as a United States agent, and that the Petitioner properly filed the H-1 B petition. 
IV. CONCLUSION 
The Director properly revoked the petition ' s a pproval pursuant to 8 C.F .R. § 214.2(h)(2)(i)(G). 
FUI1her, the petition was not properly tiled. 
ORDER: The appeal is dismissed . 
Cite as Matter olM-JB-D- Corp .. ID# 661479 (AAO Dec. 22, 2017)