dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-, INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology services provider, seeks to temporarily employ the 
Beneficiary as a "programmer/analyst" under the H-IB nonirnrnigrant 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 Vermont Service Center denied the Form 1-129, Petition for a Nonirnrnigrant 
Worker, concluding that the Petitioner did not establish that it was exempt from paying the required 
fee imposed by Public Law 114-113 or that the proffered position qualified as a specialty occupation. 
On appeal, the Petitioner asserts that the Director erred in the decision. Upon de nova review, we will 
dismiss the appeal. 
I. ANALYSIS 
According to the Fonn 1-129, the Petitioner had 700 employees in the United States at the time of 
filing. 1 As discussed in the Director's notice of intent to deny (NOID) and decision, Public Law 114-
113 requires an additional $4,000 fee for Petitioners who employ 50 or more employees in the United 
States if more than 50% of those employees are inH-lB, L-IA or L-IB status. The Director performed 
a search of United States Citizenship and Immigration Services records and found that the Petitioner 
had more than 750 H-IB petitions approved in the last three years and issued a NOID regarding the 
fee. In response, the Petitioner claimed that it employed 900 employees in the United States at the 
time of filing and that 374 of those employees were in H-lB, L-lA or L-lB status. 2 
1 The Petitioner , who prepared the Form 1-129, certified "under penalty of perjury " that it had "reviewed this petition and 
that all of the information contained in the petition , including all responses to specific questions , and in the supporting 
documents , is complete , true, and correct." 
2 If the Petitioner employed 700 employees in the United States at the time of filing , as it ce1tified on the Form 1-129, and 
374 of those individuals were in H-IB, L-lA or L-lB status , it would be required to pay the additional fee. 
Matter of M- Inc 
Because the Petitioner did not sufficiently explain why it indicated that it had 700 employees on the 
Form I-129, but claimed 900 employees in its NOID response, the Director denied the petition, in part 
for failure to address this discrepancy. 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). The Director also raised additional questions regarding the information provided in 
the response as it did not appear to include certain executives. The decision informed the Petitioner 
that "[d]oubt cast upon any aspect of the petitioner's evidence may lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition." Id. 
On appeal, the Petitioner generally repeats its claims that 1) it employed a total of 900 employees on 
the date of filing, 2) less than 50% are in H-lB, L-lA or L-lB status, and 3) it is exempt from the 
additional fee and states that it will "elaborate[] further in the appeals brief to follow." To date, no 
additional brief has been received. 
Without more, the Petitioner has not overcome the Director's findings and established that it is exempt 
from the additional fee. Further, because this issue precludes approval of the petition, we will not 
address any additional reasons for denial. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reason. 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-, Inc, ID# 4949244 (AAO Sept. 12, 2019) 
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