dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 22, 2024 In Re: 32654908 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
The Petitioner is an information technology services provider seeking to extend the Beneficiary's 
temporary employment as an "ITSM project manager" under the H-lB nonimrnigrant 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 file a petition with U.S. 
Citizenship and Immigration Services (USCIS) 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 Nebraska Service Center Director denied the Form I-129, Petition for a Nonimmigrant Worker 
(petition), concluding the record did not establish that the Beneficiary qualified for an exemption from 
the H-lB numerical limitations. 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 
novo. Matter of Christa 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we 
will dismiss the appeal. 
I. CAP EXEMPTION ISSUE 
A. Legal Framework 
Section 10l(a)(15)(H)(i)(b) of the Act, 8 U .S.C. § 1101(a)(l5)(H)(i)(b), provides a nonimrnigrant 
classification for foreign nationals who are coming temporarily to the United States to perform 
services in a specialty occupation. In general, H-lB visas are numerically capped by statute. Pursuant 
to section 214(g)(l)(A) of the Act, the total number of H-lB visas issued per fiscal year may not 
exceed 65,000. 
In general, section 214(g)(5) of the Act provides that: 
The numerical limitations contained in paragraph ( 1 )(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
10l(a)(l5)(H)(i)(b) who-
(A) is employed ( or has received an offer of employment) at an institution of 
higher education (as defined in section l0l(a) of the Higher Education Act of 
1965 (20 [§] U.S.C. I00I(a))), or a related or affiliated nonprofit entity; 
(B) is employed ( or has received an offer of employment) at a nonprofit research 
organization or a governmental research organization; or 
(C) has earned a master's or higher degree from a United States institution of 
higher education (as defined in section I0I(a) of the Higher Education Act of 
1965 (20 [§] U.S.C. l00l(a)), until the number of aliens who are exempted 
from such numerical limitation during such year exceeds 20,000. 
The regulation at 8 C.F.R. § 214.2(h)(8)(ii)(B) reads, in pertinent part, as follows: 
When calculating the numerical limitations or the number of exemptions under section 
214(g)(5)(C) of the Act for a given fiscal year, USCIS will make numbers available to 
petitions in the order in which the petitions are filed . . . . Petitions subject to a 
numerical limitation not randomly selected or that were received after the final receipt 
date will be rejected. Petitions filed on behalf of aliens otherwise eligible for the 
exemption under section 214(g)(5)(C) of the Act not randomly selected or that were 
received after the final receipt date will be rejected if the numerical limitation under 
214(g)(l) of the Act has been reached for that fiscal year. Petitions indicating that they 
are exempt from the numerical limitation but that are determined by USCIS after the 
final receipt date to be subject to the numerical limit will be denied and filing fees will 
not be returned or refunded. 
For purposes of section 214(g)(5)(A) of the Act, "institution of higher education" has the same 
definition as described at section lOl(a) of the Higher Education Act of 1965. 8 C.F.R. 
§ 214.2(h)(8)(F)(l). Section l0l(a) of the Higher Education Act of 1965, Pub. L. No. 89-329, 20 
U.S.C. § l 001 (a), defines an institution of higher education as an educational institution in any state 
that: 
(1) admits as regular students only persons having a certificate of graduation from a 
school providing secondary education, or the recognized equivalent of such a 
certificate; 
(2) is legally authorized within such State to provide a program of education 
beyond secondary education; 
(3) provides an educational program for which the institution awards a bachelor's 
degree or provides not less than a 2-year program that is acceptable for full 
credit toward such a degree; 
2 
(4) is a public or other nonprofit institution; and 
(5) is accredited by a nationally recognized accrediting agency or association, or if 
not so accredited, is an institution that has been granted preaccreditation status 
by such an agency or association that has been recognized by the Secretary for 
the granting of preaccreditation status, and the Secretary has determined that 
there is satisfactory assurance that the institution will meet the accreditation 
standards of such an agency or association within a reasonable time. 
B. Analysis 
We begin with a time line of events: 
2010 The Beneficiary earned a master's degree from I I a 
for-profit institution that does not qualify as an institution of higher education 
April 7, 2013 USCIS received enough petitions for fiscal year 2014 to exceed the statutory 
limit for H-lB regular cap cases and under the advanced degree exemption 1 
April 12, 2013 USCIS issued a receipt notice to another employer for the Beneficiary's H-lB 
petition #1 
April 11, 2014 Another employer filed H-lB petition #2 for the Beneficiary 
May 16, 2019 Another employer filed H-1 B petition #3 for the Beneficiary 
January 5, 2021 The Petitioner filed H-lB petition #4 for the Beneficiary 
November 17, 2023 The Petitioner filed H-lB petition #5 for the Beneficiary 
December 26, 2023 The Director issued a notice of intent to deny (NOID) on this petition for 
several reasons with the Beneficiary's cap exemption being one issue 
February 1,2024 The Director denied this petition 
The NOID described four bases that the Director intended to rely on to deny this petition. When the 
Director issued the NOID, they noted the Petitioner filed indicating the Beneficiary was cap exempt 
and that they provided a copy of her master's degree from I I In the NOID, the 
Director indicated that USCIS records reflected the Beneficiary obtained her initial H-lB status under 
the declaration she qualified for the master's cap because she possessed a master's degree, and the 
initial H-lB petition was counted accordingly. Ultimately, the Director alleged that H-lB petition #1 
was approved in error because the Beneficiary's degree was not a master's or higher degree from a 
U.S. institution of higher education. 
1 USCIS Reaches FY 2014 H-JB Cap, USCIS (Apr. 8, 2013), https://www.uscis.gov/archive/uscis-reaches-fy-2014-h-lb­
cap. 
3 
In response to the NOID, the Petitioner responded to three of the bases included in the notice, but they 
did not address the issue of the Beneficiary's cap exemption. The Director then denied the petition 
primarily because the Petitioner didn't address the issue of the Beneficiary's cap exempt status, nor 
did the record demonstrate she was exempt from the relevant fiscal year's H-1 B cap. It is only within 
the appeal that the Petitioner elects to comment on the Beneficiary's cap status. On appeal, the 
Petitioner offers several points they should have presented before the Director when given the 
opportunity. 
Because the Director's NOID put the Petitioner on notice and gave it a reasonable chance to address 
the cap exempt issue, we will not consider their arguments or evidence for the first time on appeal. 
See 8 C.F.R. § 103 .2(b )(11) (requiring all requested evidence be submitted together at one time); 
Matter of Furtado, 28 I&N Dec. 794, 801-02 (BIA 2024) (declining to consider new evidence on 
appeal when the filing party was put on notice of the required evidence and given a reasonable 
opportunity to provide it for the record before the denial); see also Matter ofSoriano, 19 I&N Dec. 
764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). 
II. CONCLUSION 
Because the cap exempt issue is the only matter raised in the appeal and we have 
disposed of it, we 
will dismiss the appeal. In visa petition proceedings, it is a petitioner's burden to establish eligibility 
for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
4