dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-S-, INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 18, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , an information technology services company, seeks to temporarily employ the 
Beneficiary as a "software engineer" 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 California Service Center denied the petition , concluding that the Petitioner had 
not established an employer-employee relationship with the Beneficiary, and that the proffered 
position does not qualify as a specialty occupation. The Petitioner filed an appeal with our office, 
asserting that the Director's decision was erroneous. 
We then issued a notice of intent to dismiss (NOID) on the basis that the Petitioner did not pay all 
requisite filing fees. In response to the NOID , the Petitioner contends that it properly paid all required 
fees, and in the alternative , submits a check to cover the fee difference . 
Upon de nova review, we will dismiss the appeal. 
I. BACKGROUND 
The American Competitiveness and Workforce Improvement Act (ACWIA) of 1998 was enacted to, 
among other things, provide protections in the H-lB process against the displacement of United States 
workers. Section 214(c)(9)(A) of the Act generally requires every petitioner , unless specifically 
exempted 1, to pay the ACWIA fee for each H-lB petition that it files. The collected fees are used to 
provide education, training and job placement assistance to United States workers in job areas that 
petitioners traditionally use H-IB workers. The programs that are funded by ACWIA are part of the 
government's efforts to help ensure that United States workers are trained in new and emerging fields 
1 Certain filing situations and certain employers are exempt from the ACWIA fee. See generally section 214(c)(9)(A). 
None of these exemptions apply here. 
Matter of G-S-, Inc. 
by raising the technical skill levels of these workers, and that growing businesses have access to the 
skilled American workforce they need in order to reduce the need to use the H-1 B program. 
Section 214( c )(9)(B) of the Act sets the ACWIA fee at $1,500, but permits a petitioner with "not more 
than 25 full-time equivalent [(FTE)] employees who are employed in the United States (determined 
by including any affiliate or subsidiary of such employer)" to pay a lower fee of $750. When the 
Petitioner filed this petition for new employment, it claimed eligibility for and paid the lower ACWIA 
fee of $750. On its Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner answered that it 
had 23 current employees in the United States, and on the H-1B and H-1B1 Data Collection and Filing 
Fee Exemption Supplement, the Petitioner answered "Yes" to the question "Do you currently employ 
a total of 25 or fewer full-time equivalent employees in the United States, including all affiliates or 
subsidiaries of this company/organization?" 
At issue is whether the Petitioner has demonstrated its eligibility to pay the $750 ACWIA fee 
II. ANALYSIS 
We conclude that the Petitioner has not demonstrated its eligibility for the $750 ACWIA fee based on 
the total employee count of its company plus all its affiliates. 
As we discussed in the NOID, publicly available records (copies of which were provided to the 
Petitioner) indicated the existence of other companies that are owned and controlled by the same 
individual who owns and controls the petitioning company. In our NOID, we stated that, if true, these 
other companies would be considered the Petitioner's "affiliates" and their employees should have 
been counted with the Petitioner's employees to render the Petitioner ineligible for the lower $7 50 fee. 
In response to the NOID, the Petitioner acknowledges that these other companies are "owned by the 
same owner who owns and controls these entities." The Petitioner submits tax documentation 
confirming that the Petitioner and these other companies are wholly owned by the same shareholder. 
Nevertheless, the Petitioner contends that because these other companies "are separate legal entities, 
as such separate legal persons, ... the petitioner should qualify for the reduced ACWIA fee of $750." 
We are not persuaded. For purposes of the H-1B ACWIA fee, USCIS defines the term "affiliates" as 
follows: "(l) [o]ne of two subsidiaries both of which are owned and controlled by the same parent or 
individual, or (2) [ o ]ne of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or proportion of each entity." 
See USCIS Policy Memorandum PM-602-014 7, Definition of "Affiliate" or "Subsidiary" for 
Purposes of Determining the H-IB ACWIA Fee (Aug. 9, 2017), 
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-8-9-PM-602-014 7-H-
1 BAffiliateSubsidiary.pdf. It is clear from these definitions that two (or more) legal entities are 
"affiliates" if they are owned and controlled by the same individual. 
Again, the Petitioner concedes that it and the other companies are "owned by the same owner who 
owns and controls these entities." Therefore, they are the Petitioner's "affiliates" for purposes of the 
ACWIA fee. The fact that each company is separately incorporated is irrelevant to this analysis. 
2 
Matter of G-S-, Inc. 
Further, the provided tax documentation reflects that each affiliated company had between 30-40 
employees per company as of quarter 2 in 2019. Considering the Petitioner's 23 employees at the 
time of filing, the Petitioner has not demonstrated that its total employee count - which must include 
all the employees of its affiliated companies - did not equal or exceed 25 FTE employees at the time 
of filing. 2 Consequently, the Petitioner has not demonstrated that it was eligible for, and properly 
paid, the $750 ACWIA fee at the time it filed this petition. 
Because the Petitioner did not pay all requisite filing fees, i.e., the $1,500 ACWIA fee, the instant 
H-1B petition was not properly filed. This filing deficiency mandates the denial of this petition. As 
a result, we need not and will not address the grounds for denial articulated by the Director. Although 
the Petitioner now requests us to accept a check for the filing difference, it is unable to cure this filing 
fee deficiency after-the-fact. 3 See 8 C.F.R. § 103.2 (the required filing fee(s) must accompany the 
benefit request and "must be paid when the benefit request is filed"). 
ORDER: The appeal is dismissed. 
Cite as Matter of G-S-, Inc., ID# 4057089 (AAO Sept. 18, 2019) 
2 Although the Petitioner did not state or document how many employees these companies actually had as of this petition's 
filing date in April 2018, it is reasonable to assume (based on the number of employees they had as of quarter 2 in 2019) 
that these companies combined had at least two employees, thereby causing the Petitioner to have at least 25 employees. 
3 We will return the check to the Petitioner. 
3