dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12035016 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 28, 2020 
The Petitioner, an information technology services company, sought to employ the Beneficiary 
temporarily under the H-lB nonimmigrant classification for specialty occupations.1 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 Vermont Service Center Director originally approved the petition. After conducting "an end­
client verification," the Director issued a notice of intent to revoke (NOIR). In response, the Petitioner 
requested to withdraw the petition. The Director then automatically revoked 2 the petition "with a 
separate, continued finding of fraud." The Petitioner subsequently filed a motion to reopen which the 
Director dismissed. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 3 
Upon de nova review, 4 we will dismiss the appeal. 
I. ANALYSIS 
Depending on the factual circumstances, U.S. Citizenship and Immigration Services (USCIS) 
regulations provide for the automatic revocation of approved H-lB petitions, as well as revocation on 
notice after providing the Petitioner with notice of its intent to revoke and allows an opportunity to 
respond. See 8 C.F.R. § 214.2(h)(l l) . The Director may revoke a petition at any time, even after the 
expiration of the petition.5 In addition, the regulation at 8 CFR § 214.2(h)(ll)(i)(A) requires a 
petitioner to "immediately notify the Service of any changes in the terms and conditions of 
employment of a beneficiary which may affect eligibility under section 10l(a)(15)(H) of the Act and 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 8 C.F.R. § 214.2(h)(ll)(ii). 
3 Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
4 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). 
5 8 C.F.R. § 214.2(h)(ll)(i)(B) . 
paragraph (h) of this section .... If the petitioner no longer employs the beneficiary, the petitioner 
shall send a letter explaining the change(s) to the director who approved the petition." 
After initially approving the petition with a validity period from October 1, 2016 until December 31, 
2018, the Director issued a NOIR on November 13, 2018 informing the Petitioner, in part, that in 
response to USCIS' inquiry, the end-client indicated "the beneficiary has never provided services for, 
or worked at" the address listed on the petition and that he was "unknown to [the end-client] and is 
not known by other employees of' the end-client. The NOIR also explained that the Petitioner "may 
submit evidence to overcome the noted reasons for revocation" and that if a timely response was not 
received, "a final decision will be made based on the evidence currently in the record." In response, 
rather than address the issues raised in the NOIR or offer additional evidence, the Petitioner requested 
to withdraw the petition. As a result, the Director automatically revoked the petition pursuant to 
8 C.F .R. § 214.2(h)(l 1 )(ii) with a separate finding of fraud. 6 
In this matter, because the Petitioner did not submit any rebuttal evidence to overcome the issues raised 
in the N OIR, we cannot conclude that the Director's decision regarding the finding of fraud or material 
misrepresentation was in error based upon the evidence in the record at the time of the 
revocation. See generally Matter of Valdez, 27 I&N Dec. 496 (BIA 2018) (discussing section 
212(a)(6)(C)(i) of the Act and the obligation to consider any rebuttal evidence). We would also note 
that when a Petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, we need not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N 
Dec. 533 (BIA 1988). If the Petitioner wanted the submitted evidence to be considered, it should have 
provided the documents in response to the NOIR. Id. 
The appeal will be dismissed for the above stated reasons. 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 here, and the petition will remain revoked. 
ORDER: The appeal is dismissed. 
6 The regulation at 8 C.F.R. § 214.2(h)(l 1 )(ii) provides, in pertinent paii for "immediate and automatic revocation," without 
notice, when "the petitioner ... files a written withdrawal of the petition." 
2