dismissed H-1B Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-C-0-L-S- DDS 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 26. 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 101(a)(l5)(H)(i)(b). 8 U.S.C. ~ 1101(a}(15)(H)(i)(b). The H-1 B 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) the Petitioner filed a duplicate petition in prohibition of 8 C.F.R. ~ 214.2(h)(2)(i)(G): (2) the 
Petitioner did not make a credible offer of employment; and (3) the Petitioner did not pay the 
appropriate fee under the American Competitiveness and Workforce Improvement Act of 1998 
(ACWIA). 
On appeal, counsel submits a brief and additional evidence. and asserts that the Director erred in her 
decision. 
Upon de noro review. we will dismiss the appeal. 
I. BACKGROUND 
The Form l-129. Petition for a Nonimmigrant Worker. listed the name of the Petitioner as D Corp. 1 
The Form l-129 requested new full-time employment for the Beneficiary. listed only one work 
address for her. 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 D Corp. and a related entity. S Corp .. tiled duplicate petitions for the 
Beneficiary. and whether a credible otTer of employment existed since both entities offered full-time 
1 
We will use abbreviated company names for simplicity and privacy purposes. 
.
Malter qf D-C-0-L-S- DDS 
employment. The Director further inquired about the appropriate ACWIA fee, noting that another 
company, , appeared to have filed the petition. 
responded to the NOIR explaining that D Corp. is the Petitioner and did not intend 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, 
reasoned that two petitions were submitted for the Beneficiary because she will be concurrently 
working for D Corp. and S Corp. 
On appeaL counsel elaborates that, at the time of filing, both D Corp. and S Corp. intended to 
employ the Beneficiary on a full-time basis. defined as at least 30 hours per week. Counsel also 
requests U.S. Citizenship and Immigration Services (USCIS) to treat this as a .. concurrent"" tiling 
explaining that, at the time of tiling, it could not have submitted this as a petition for concurrent 
employment since concurrent petitions require at least one approval. 
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 tiled 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. ... Otherwise, tiling more than one H-18 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 USCIS believes that related entities (such as a 
parent company. subsidiary, or aftiliate) 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)( 1 )(A) of the Act or otherwise eligible for an exemption 
under section 214(g)( 5)(C) of the Act, USCTS 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 tiled on that alien's behalf by the 
related entities will be denied or revoked. 
2 
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 par1y dental offices, 
including D Corp. and S Corp. 
2 
Malter of D-C-0-L-S- DD.\' 
As seen above, 8 C.F.R. ~ 214.2(h)(2)(i)(G) requires the revocation of all approved petitions for the 
same beneficiary filed by related entities unable to demonstrate a legitimate business. This specific 
revocation provision supplements the general revocation provision found at 8 C .F.R. 
~ 214.2(h)(ll)(iii)(A), which provides for revocation on notice if: 
(1) The Beneficiary is no longer employed by the Petitioner in the capacity specified 
in the petition .... : or 
(2) The statement of facts contained in the petition ... was not true and correct, 
inaccurate, fraudulent. or misrepresented a material fact: or 
(3) The Petitioner violated terms and conditions of the approved petition: or 
(..f.) The Petitioner violated requirements of section IOI(a)(l5)(H) of the Act or 
paragraph (h) of this section: or 
(5) The approval of the petition violated [paragraph] (h) of this section or involved 
gross error. 
B. Analysis 
Upon review, we conclude that the Director properly revoked the petition. 
In our view, D Corp. and S Corp. 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. 3 While counsel correctly points out that D Corp. and 
S Corp. are separate and independent employers with different federal tax identification numbers. 
their separate legal existence docs not preclude a finding that they arc .. related" for these purposes. 
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. 4 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 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 effectuate this provision's remedial 
purposes. 8 C.F.R. ~ 214.2(h)(8)(ii)(B) (addressing .. the fair and orderly allocation of numbers" 
under the H-1B visa lottery); Petitions Filed on Behalf of H-1 B Temporary Workers Subject to or 
Exempt from the Annual Numerical Limitation. 73 Fed. Reg. 15389-95. 15391-93 (Mar. 24. 2008) 
'These are not exclusive factors. 
4 
For example. lv/erriam-Hlebster Online Dictionar1· defines the word '"related" as '"connected by reason of an established 
or discoverable relation.·· Merriam- Webster Online Dictionar1·. https: 1/www.merriam-webster.com/dictionary!related 
(last visited Dec. 22. 20 17). 
Matter of D-C-0-L-S- DDS' 
(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 Wh;rfpool 
Corp. v. Marshall, 445 U.S. 1. 12-13 (1980)). 
Counsel asserts that, to the extent D Corp. and S Corp. are related. they had a legitimate business 
need to tile separate petitions for the Beneficiary based on their concurrent employment for her. 
However. the record does not sufficiently document the terms and conditions of the Beneficiary· s 
employment, which undermines any claim regarding 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 explains that D Corp.'s definition of'·full-time'' is at least 
30 hours per week per office according to the AfTordable Care Act. However. D Corp.'s 
employment agreement with the Beneficiary, dated August 2015, is for ''pmi-time" employment 
defined therein as less than 32 hours a \veek in the aggregate. While counsel explains that the 
employment agreement was signed prior to D Corp.'s adoption of the Affordable Care Act definition 
in 2015. she does not clarify exactly when D Corp. adopted the ne\V definition. nor does she 
corroborate this claim \vith objective evidence such as an amended employment agreement 
containing a revised definition. Notably. the record contains a copy of the Beneficiary's original and 
revised employment agreements with S Corp .. dated August 2015 and December 2015, respectively. 
the latter of which changed the Beneficiary's proposed employment status from part-time to full­
time but still defined part-time employment as less than 32 hours per week. The employment 
agreements are silent as to the Beneficiary's specific pay rate. 
Further, the Form I -129 listed the proffered wage as $2.000 per week, and the labor condition 
application (LCA) 5 indicated that the Beneficiary will be paid $50 per hour. which \vould suggest 
that based on the $2,000 weekly \vage, she \vould work 40 hours per \veek. On the other hand. the 
Beneficiary's pay statements shov,· an hourly pay rate of $56.25 per hour. The pay statements 
contain varying amounts of pay and unexplained pay categories, and we are unable to ho\v many 
hours the Beneficiary worked during each pay period. For example. for the pay period from May 16, 
2016. to May 31.2016. the pay categories include "Salary'' of$1.560 and .. Regular-Or."' category of 
$240. which add up to $1,800. At $56.25 pay rate. this suggests that the Beneficiary worked 32 
hours for the two week period or 16 hours per week. However. another pay statement from June 1, 
2016, to June 15. 2016, ref1ects that the Beneficiary received $1.560. vvhich would suggest she 
worked 28 hours for the two-\veek period or 14 hours per v.reek. 
5 
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 
Matter ofSimeio Solutions. LLC, 26 I&N Dec. 542. 545-546 (AAO 20 15) 
4 
.
Matter of D-C-0-L- ,)'- DDS 
Moreover, the employment agreement allows the Beneficiary to provide dental services '"at any and 
all other dental practices receiving business suppot1 services from or atliliated companies]." 
By the very terms of her employment agreement, the Beneficiary may provide dental services to 
other. unspecified dental offices under unspeci tied conditions. This contractual provision opens up 
additional 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 pursuant to 8 C.F.R. 
§ 214.2(h)(2)(i)(G). 6 
III. CREDIBLE OFFER OF EMPLOYMENT 
We also agree with the Director that the record was insutlicient to demonstrate the credibility of the 
job offer to the Beneficiary . As discussed above, the record does not sufficiently demonstrate the 
terms and conditions of the proposed employment, including how many hours she will work per 
week per location and her pay rate. Therefore , the Director also properly revoked the approval of 
the petition under 8 C.F.R. § 214.2(h)(ll)(iii)(A)(/). (2), and (5). 
Ambiguities surrounding the actual employer, i.e., the Petitioner, further cloud our understanding of 
the job offer's credibility . While D Corp . is named as the employer and Petitioner, a representativ e 
of signed all attestations on the Form 1-129 and accompanying forms in the spaces reserved 
exclusively for the ''Pet itioner'' or an "A uthorized Official of Employer.'· The support letter 
submitted with the petition is hom and speaks of D Corp. as "part of' while also speaking 
of the Beneficiary as becoming part of "our professional staff' (emphasis added). submitted 
the NOIR response. The appeal was submitted by of whose Form 
G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. was signed by a 
representative of See 8 C.F.R. § 292.4(a) (the Fom1 G-28 must be properly completed and signed 
by the Petitioner). 
On appeal, counsel contends that properly signed all forms as D Corp.'s "agent for service." 
However, the record does not support the conclusion that qualified as D Corp.'s ''agent'' under 
California law, and more pertinently , for H-1 B purposes under 8 C.F.R. § 214.2(h)(2)(i)(F). The 
record does not contain any agent authorization or similar contractual agreement between and 
D Corp. While the record confirms the existence of a relationship between and D Corp., it does 
not sufticiently detail the scope of that relationship, including authority. if any, to sign or file 
c, 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. 
.
Matter of D-C-0-L-5. '- DDS 
immigration paperwork on D Corp.'s behalf The record as presently constituted does not 
sufficiently demonstrate who the actual employer and Petitioner is, and consequently, whether 
D Corp.'s offer of employment to the Beneficiary is credible. 
Even if D Corp. is the Petitioner of the Fmm 1-129, we must question whether it maintained this 
standing at the time of appeal. The appeal contains evide11ce establishing that D Corp. amended its 
corporate structure and changed its legal name to R Corp. This corporate restructure appeared to have 
occuned on or before January L 2017. 7 The appeal was subsequently filed on January 18,20 17, but 
continues to name the Petitioner as D Corp. rather than its legal name at that time, R Corp. Moreover , 
counsel states on appeal that the restructure "does not grant any benefits or allowances for immigration 
purposes." This statement raises additional questions about the terms of agreement under which the 
corporate restructure took place, e.g., whether R Corp. succeeded to the interests and obligations of D 
Corp. and whether the tetms and conditions of employment remain the same but tor the Petitioner's 
identity. See section 214(c)(l0) of the Act; 8 C.F.R. § 214.2(h)(2)(i)(D), (E); 20 C.F.R. 
§ 655.730(e)(2). 
Ultimately, the record does not suniciently demonstrate the terms and conditions of employment , and 
hence, the credibility of the job offer. The Petitioner has not overcome the Director's determination that 
the Beneficiary is no longer employed by the Petitioner in the capacity specified in the petition, the 
statement of facts contained in the petition was not true and correct and that the approval of the 
petition violated 8 C.F.R. § 214.2(h). 8 C.F .R. § 214.2(h)(ll)(iii)(A)(J), (2), (5). 
IV. ACWIA FEE 
The same ambiguities regarding the actual employer and Petitioner also preclude us from 
determining whether the appropriate ACWIA fee was paid for this petition. Because the record does 
not sufficiently establish who the Petitioner is, i.e ., or D. Corp., we cannot determine the 
Petitioner's size and whether the $1,500 fee or the $750 reduced fee (for petitioners who employ no 
more than 25 full-time equivalent employees) was appropriate. 
V. CONCLUSION 
The Director properly revoked the petition 's approval. 
ORDER: The appeal is dismissed. 
Cite as Matter ojD-C-0-L -S- DDS, JD# 417237 (AAO Dec. 26, 2017) 
7 
The most recent stock certificates were issued on January I, 2017.