dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8797787 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 29, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as 
"senior lead" under the H-lB nonimmigrant classification for specialty occupations . 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 California Service Center denied the petition, concluding that the Petitioner did 
not establish that it was exempt from paying the required fee imposed by Public Law 114-113. 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 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
According to the Form 1-129, Petition for a N onimmigrant Worker, which the Petitioner certified 
under penalty of perjury that it had confirmed "all information contained in the petition, including all 
responses to specific questions, and in the supporting documents , is complete, true, and correct," the 
Petitioner had 596 employees in the United States at the time of filing. 1 As the Director discussed in 
the decision, Public Law 114-113 requires an additional $4,000 fee for petitioners that employ 50 or 
more employees in the United States if more than 50% of those employees are in H-lB, L-lA, or L-lB 
status. The Director performed a search of U.S. Citizenship and Immigration Services (USCIS) 
records and found that the Petitioner "obtained at least 325 H-lB Form 1-129 approvals in the last 
three years compared to the 596 U.S. employees [it] indicated on the Form 1-129," which appears to 
exceed the 50% threshold for the fee. 
1 The Petitioner submitted documentation to support the H-lB petition , including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
The Director issued a request for evidence (RFE), informing the Petitioner, in part, that it did not 
appear exempt from the fee, and requesting "evidence to establish that [the Petitioner is] exempt from 
the fee." In response, the Petitioner asserted in an undated letter that "[c]urrently, [the Petitioner] 
employs a total of 441 full-time employees. Of those 441 total employees, only 181 of those 
employees are in H or L status." 2 The Petitioner did not explain why it initially stated it had 596 
employees in the United States and why its revised statement of having 441 employees in the United 
States may be more credible than its prior statement, which was sworn under the penalty of perjury. 
The Petitioner also submitted lists that appear to be Excel spreadsheets, with column headings 
including "First Name," "Last Name," and "Fusion ID"; however, the lists do not indicate a hiring 
date for a given individual and they do not address the total list of beneficiaries for approved H-1 B, 
L-lA, and L-1B petitions submitted by the Petitioner during the three years preceding the petition 
filing date. Furthermore, the record does not contain evidence, such as the Petitioner's payroll records, 
to establish the individuals the Petitioner actually paid as employees at the time of filing the petition. 
The Director denied the petition, in part, because the Petitioner did not sufficiently explain the 
discrepancy between its statements that it had 596 employees at the time of filing the petition but 441 
employees at the time of the RFE response. The Petitioner must resolve this inconsistency with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). Doubt cast on any aspect of evidence submitted in support of a visa petition may lead 
to a reevaluation of the reliability and sufficiency of remaining evidence offered in support of the 
petition. Id. 
On appeal, the Petitioner reasserts that it had 441 U.S. employees, 181 of which were "on H or L 
status," at the time of filing the petition, despite USCIS records indicating it approved at least 325 
H-1 B petitions submitted by the Petitioner during the three years prior to the petition filing. 3 The 
Petitioner further asserts on appeal that "the number of employees listed on the Form 1-129 was 
incorrect. The data should read 441 employees." The Petitioner also submits a single-page excerpt 
from a Form 1-129, numbered "5 of 36," stating in relevant part that the "[c]urrent [n]umber of 
[ e ]mployees in the United States" of the unidentified petitioner for that excerpted, undated petition is 
441.4 However, similar to the RFE response, the Petitioner does not explain why it initially stated it 
had 596 employees in the United States and why its revised statement may be more credible. More 
broadly, the Petitioner does not clarify on appeal why its statements in general are reliable, despite 
providing a significant "incorrect" statement under penalty of perjury. 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition 
may not be approved at a future date after a petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
2 Although the Petitioner's letter is undated, USCIS received the RFE response four months after the petition filing date, 
when the Petitioner asserted it had 155 more employees in the United States. In contrast, an Internal Revenue Service 
Form 941, also submitted in response to the RFE, indicates that the Petitioner employed 490 individuals between January 
and March 2019. 
3 A petitioner that does not use an approved H-1 B petition because the beneficiary does not apply for admission to the 
United States "shall notify the [USCIS] Director who approved the petition that the number(s) has not been used." 8 C.F.R. 
§ 214.2(h)(8)(ii)(B); see also 8 C.F.R. § 214.2(h)(l l)(i)(A). 
4 The excerpt does not bear indicia that USCIS accepted it as part of a filed Form 1-129. 
2 
Given the entirety of the record, including the Petitioner's varying statements that it employed 596 or 
441 employees at the time of filing the petition, its assertion that it "incorrect[ly ]" certified under 
penalty of perjury that its workforce was substantially larger at the time of filing the petition than it 
actually was, the lack of an explanation why the Petitioner provided inconsistent information and why 
one of its statements may be more credible than another, the record does not sufficiently establish, 
through reliable evidence, the actual number of the Petitioner's employees at the time of filing the 
petition and the percentage of which were in in H-1B, L-lA, or L-1B status, in order to determine 
whether the Petitioner is exempt from the fee required by Public Law 114-113, based on approved 
H-1B petitions in USCIS records. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 5 
ORDER: The appeal is dismissed. 
5 As the presumption, presented by the Director's finding, that the Petitioner is not exempt from the fee required by Public 
Law 114-113 is not rebutted in the record and dispositive of the appeal, we will not further discuss whether the petition 
satisfies the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3