dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 10713453 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 21, 2020 
The Petitioner , an information technology services and solutions company, seeks to extend the 
Beneficiary's temporary employment as a "systems analyst" under the H-lB nonimmigrant 
classification for specialty occupations . See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that the petition is exempt from the annual numerical limitations for the requested 
classification . On appeal, the Petitioner asserts that there is no method of knowing under which quota 
the initial petition was selected; that the denial of this petition would cause undue hardship to both the 
Petitioner and the Beneficiary; and, therefore , the petition should be approved . The matter is now 
before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Pursuant to section 214(g)(l)(A) of the Act, the total number of H-1B visas issued per fiscal year may 
not exceed 65,000. This numerical cap on H-1B visas is commonly referred to as the "H-1B cap." In 
addition, section 214(g)(5)(C) of the Act provides that "[t]he [H-1B] numerical limitations ... shall 
not apply to any nonirnmigrant alien issued a[n H-1B] visa or otherwise provided [H-1B status] who 
... has earned a master's or higher degree from a United States institution of higher education (as 
defined in section l0l(a) of the Higher Education Act of 1965 (20 U.S .C. lO0l(a)), until the number 
of aliens who are exempted from such numerical limitation during such year exceeds 20,000 ." This 
is commonly referred to as the "master's cap." 
An "institution of higher education" is defined, in pertinent part, as an educational institution in any 
State that is a public or other nonprofit institution. 1 
Section 214(g)(7) of the Act provides that "any alien who has already been counted, within the 6 years 
prior to the approval of a petition described in subsection ( c ), toward the numerical limitation of 
paragraph (l)(A) shall not again be counted toward those limitations .... " 
II. ANALYSIS 
For the reasons discussed below, upon review of the record,2 we conclude that the Petitioner has not 
established that the petition is eligible for the cap exemption. Specifically, the Petitioner has not 
established that I I University, where the Beneficiary earned her master's degree, is a public or 
nonprofit institution, and therefore, it does not meet the definition of a U.S. institution of higher 
education. As a result, the Beneficiary's initial H-lB petition approval under the master's cap 
exemption was in error and, thus, the current petition is subject to the annual numerical limitations 
and may not be approved. 
According to U.S. Citizenship and Immigration Services' (USCIS) records, the Beneficiary was 
approved for a change of status to H-lB on June 6, 2013, under the master's cap exemption. 3 The 
Beneficiary has received subsequent extensions of her H-1 B status. In the instant petition, the 
Petitioner indicated on the Form 1-129, H-lB and H-lBl Data Collection and Filing Fee Exemption 
Supplement, that the petition is exempt from the annual numerical limitations. Prior to denying the 
instant petition, the Director issued a notice of intent to deny requesting evidence thatl I 
University has public or nonprofit status. The Petitioner did not provide the requested evidence in its 
response but asserted, "since the H-lB master and Bachelor's cap was reached within the first week­
making it virtually impossible to determine whether or not the Beneficiary's petition was selected as 
a Bachelor's or Master's CAP case." 
On appeal, the Petitioner makes similar assertions. However, we note that the Petitioner does not 
contest on appeal the Director's conclusion thatl I University, where the Beneficiary earned 
her master's degree, is not a public or nonprofit institution, and therefore, does not meet the definition 
of a U.S. institution of higher education. Accordingly, we conclude that the Beneficiary did not earn 
her degree from an "institution of higher education," and she is thus ineligible for the master's cap 
exemption. 4 
On appeal, the Petitioner claims that "the previously approved cap-subject case still being valid and 
non-revoked, the Beneficiary appears to have been counted under the cap .... " As we noted, USCIS 
1 20 U.S.C. § lO0l(a) (2012) (originally enacted as the Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219) 
("Higher Education Act") ( emphasis added). 
2 While we may not discuss every document submitted, we have reviewed and considered each one. 
3 This petition was revoked on September 2, 2015. 
4 On appeal, the Petitioner does not address the primary reason for the denial: that the basis for the Beneficiary's cap 
exempt status derived from a degree conferred by an institution that is not a public or nonprofit institution, which cannot 
serve to quality her under the master's cap exemption. As a result, the Petitioner has abandoned this issue on appeal. 
Matter of Zhang, 27 l&N Dec. 569 n.2 (BIA 2019) (finding that an issue not appealed is deemed as abandoned). A 
petitioner cannot meet its burden of proof in these proceedings when it abandons the main issue on appeal. 
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records indicate that the approval of the cap-subject petition was revoked on September 2, 2015. 5 The 
Petitioner provides no evidence to demonstrate that the Beneficiary was approved under the regular 
cap. 6 Simply creating ambiguity by stating that the Beneficiary "appears to have been counted under 
the cap" is not sufficient to meet the Petitioner's burden to demonstrate eligibility for the benefit 
sought. It is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 r&N Dec. 799,806 (AAO 
2012). 
The Petitioner further asserts the following: 
[T]he current Petitioner would be detrimentally affected due to the oversight by the 
previous employer, that employer's counsel, and the adjudicating officer(s) who issued 
the decision on the previous case. 
The denial would cause undue hardship to both the Beneficiary, who was not a party 
to the way the initial petition was filed, and the current Petitioner, who has no means 
of knowing ifthere was any users error previously that would impact the current work 
authorization. 
We acknowledge that users erroneously approved H-1 B petitions filed on behalf of the Beneficiary 
under the master's cap, including the subsequent extensions utilizing the master's cap exemption. 
However, the mere fact that users, by mistake or oversight, approved visa petitions does not create 
an automatic entitlement to the approval of a subsequent petition for renewal of that visa. See, e.g., 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir 2007); Matter o_f Church Scientology Int'l, 
19 r&N Dec. 593, 597 (Comm'r. 1988). users is not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. Id; see also Sussex Eng 'g, Ltd. v. Montgomery, 825 F .2d 1084, 1090 ( 6th Cir. 1987). Each 
nonimmigrant petition filing is a separate proceeding with a separate record and a separate burden of 
proof 8 C.F.R. § 103.2(b)(l6)(ii). 
Per the regulation at 8 CFR 214.2(h)(8)(ii)(D), " ... petitions received after the total numbers available 
in a fiscal year are used stating that the alien beneficiaries are exempt from the numerical limitation 
will be denied and filing fees will not be returned or refunded if users later determines that such 
beneficiaries are subject to the numerical limitation." As indicated by the Director, the current petition 
was filed after the final receipt date of the FY 2020 Cap. 7 Without evidence that I I University 
was a public or nonprofit institution on the date the initial petition was filed, we cannot conclude that 
the Beneficiary was eligible for the cap exemption. Accordingly, the current petition is subject to the 
numerical limitation and may not be approved. 
5 See 8 C.F.R. § 214.2(h)(l 1) for revocation of approved H- lB petitions. 
6 The Petitioner of the initial petition responded to the statement in Part C, section 1, "[s]pecify how this petition should 
be counted against the H-1 B numerical limitation" by selecting option (b) "CAP H-1 U.S. Master's Degree or Higher." In 
her decision, the Director explained that the initial petition could not have been counted under the regular cap because at 
the time of the approval, there were no available numbers under the regular cap category. 
7 The final receipt date of the FY 2020 Cap was on April 10, 2019. The instant petition was filed on November 1, 2019. 
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III. CONCLUSION 
The Petitioner has not established that the petition is not subject to the annual numerical limitation of 
the classification. 
ORDER: The appeal is dismissed. 
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