dismissed H-1B Case: Law

U.S. Citizenship 
and Immigration 
Services 
In Re: 6445048 
Certification of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
The Petitioner, a humanitarian not-for-profit organization, seeks to employ the Beneficiary as an 
"associate general counsel" under the H-IB 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-IB 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. 
Initial H-lB visas (including grants of initial H-lB status) are statutorily capped at 65,000 per year to 
protect the United States workforce .' Section 214(g)(l)(A) of the Act, 8 U.S.C. § 1184(g)(l)(A). The 
number of cap-subject H-lB petitions received by USCIS (U.S. Citizenship and Immigration Services) 
in recent years has exceeded the annual cap on initial H-lB visas. 2 Section 214(g)(5) of the Act 
exempts three classes of beneficiaries from the cap, which include those who are employed or have 
received an offer of employment at institutions of higher education ( or a related or affiliated nonprofit 
entity), nonprofit or governmental research organizations, or who have earned a master's or higher 
degree from a United States institution of higher education (numerically limited to 20,000 annually). 
The Director of the California Service Center issued an initial decision denying the requested benefit 
and certified it to the Administrative Appeals Office (AAO) for review. 3 The Director concluded that 
the Beneficiary is not eligible for an exemption from the statutory cap because the Petitioner did not 
establish that it is a nonprofit research organization primarily engaged in research , as required under 
the applicable regulations. The Petitioner did not submit a brief in response to the certification. 
1 See generally U.S. General Accounting Office, "Immigration and the Labor Market: Nonimmigrant Alien Workers in 
the United States," GAO/PEMD-92-17 , April 1992 (discussing the Irnrnigration Act of 1990 and the creation of the cap). 
2 See Registration Requirement for Petitioners Seeking to File H-lB Petitions on Behalf of Cap-Subject Aliens , 84 Fed. 
Reg. 888, 925 (Jan. 31, 2019) (Table 3: H-lB Cap-Subject Petitions Received by USCIS, FY 2013-2017). 
3 Cases that have unusually complex or novel issues of law or fact may be certified to the AAO pursuant to 8 C.F.R. 
§ I 03.4(a). 
The Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 
25 I&N Dec. 369, 375-76 (AAO 2010). Upon de novo review, we will deny the petition. 
I. LEGAL FRAMEWORK 
The regulation at 8 C.F.R. § 214.2(h)(8)(iii)(F), 4 which addresses cap exemptions under sections 
214(g)(5)(A) and (B) of the Act, incorporates the definition of"nonprofit research organization" found 
at 8 C.F.R. § 214.2(h)(19)(iii)(C). "Nonprofit research organization" is defined at 8 C.F.R. 
§ 214.2(h)(l 9)(iii)(C) as "an organization that is primarily engaged in basic research and/or applied 
research." 5 Further, the regulation at 8 C.F .R. § 214.2(h)(l 9)(iv) requires that a nonprofit organization 
as described in 8 C.F.R. § 214.2(h)(l9)(iii)(C) be "[d]efined as a tax exempt organization under ... 
26 U.S.C. § 501(c)(3), (c)(4) or (c)(6), and [have] been approved as a tax exempt organization for 
research or educational purposes by the Internal Revenue Service." 
Finally, the regulation at 8 C.F.R. § 214.2(h)(8)(ii)(B) (2018) states: "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 refonded." 6 
II. ANALYSIS 
The legal framework at 8 C.F .R. § 214.2(h)(l 9) allows a two-prong analysis that flows from a limited, 
narrow question to a "totality" inquiry. First, we examine whether the Petitioner is a nonprofit 
organization under 8 C.F.R. § 214.2(h)(l9)(iv); and second, we determine whether the Petitioner is 
primarily engaged in research under 8 C.F.R. § 214.2(h)(l 9)(iii)(C). The first prong requires a limited 
inquiry into the Petitioner's status as a nonprofit while the second prong requires an inquiry into the 
nature of the Petitioner's operations based on a totality of the evidence. 
Upon review of the record, we conclude that while the Petitioner is a nonprofit organization under 
8 C.F.R. § 214.2(h)(19)(iv), it has not established that it is primarily engaged in basic research or 
applied research under 8 C.F.R. § 214.2(h)(19)(iii)(C). Therefore, the Beneficiary is not eligible for 
the claimed cap exemption as an employee of a nonprofit research organization under section 
214(g)( 5)(B) of the Act. To determine whether a petitioner has met its burden under the preponderance 
standard, we consider not only the quantity, but also the quality of the evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
4 When this petition was filed, this regulatory provision was at 8 C.F.R. § 214.2(h)(8)(ii)(F). This section was redesignated 
as 8 C.F.R. § 214.2(h)(8)(iii)(F) due to a final rule that became effective April 1, 2019, which implemented a registration 
requirement for H-1 B petitions. Registration Requirement for Petitions Seeking to File H-1 B Petitions on Behalf of Cap­
Subject Aliens, 84 Fed. Reg. at 954. 
5 The regulation at 8 C.F.R. § 214.2(h)(19)(iii)(C) also provides definitions for basic and applied research. 
6 8 C.F.R. § 214.2(h)(8)(ii)(B) was removed in the registration requirement final rule in 2019, but the final rule has a 
similar provision at 8 C.F.R. § 214.2(h)(8)(iv)(B). Registration Requirement for Petitions Seeking to File H-IB Petitions 
on Behalf of Cap-Subject Aliens, 84 Fed. Reg. at 954. 
2 
A. Is the Petitioner a Nonprofit Organization? 
As an initial requirement, the Petitioner must establish that it is a nonprofit or tax exempt organization. 
Under the regulations, the organization must be "[d]efined as a tax exempt organization under ... 
26 U.S.C. § 50l(c)(3), (c)(4) or (c)(6)," and must have been "approved as a tax exempt organization 
for research or educational purposes by the Internal Revenue Service." 8 C.F.R. § 214.2(h)(19)(iv). 
A petitioner's status as a nonprofit organization hinges on approval bOh y the Internal Revenue 
Service (IRS). We take notice that the IRS applies both an "organizational" and an "operational" test 
as a condition for nonprofit status. See generally 26 C.F.R. § 1.50l(c)(3)-l(a)(l). An organization 
may qualify for exemption from federal income tax under section 501(c)(3) of the Internal Revenue 
Code (IRC), 26 U.S.C. § 501(c)(3), for example, if it is organized and operated exclusively for one or 
more of the following purposes: religious, charitable, scientific, testing for public safety, literary, 
educational, or the prevention of cruelty to children or animals. 26 C.F.R. § 1.50l(c)(3)-l(d)(l)(i). 
The articles of organization must limit the organization's activities to one or more authorized purposes 
and must not "expressly empower it to engage, other than as an insubstantial part of its activities, in 
activities that don't further one or more of those purposes." IRS Publication 557, Tax-Exempt Status 
for Your Organization, at 24-25 (Rev. Jan. 2019), available at https://www.irs.gov/pub/irs­
pdf/p557.pdf. 
As an activity, "research" is not listed as an exempt purpose under section 50l(c)(3) of the IRC. 
Instead, IRS regulations discuss "research" in the context of exempt scientific purposes. 26 C.F.R. 
§ 1.501(c)(3)-l(d)(5) ("Scientific defined"); see also Midwest Research Inst. v. United States, 554 
F. Supp. 1379, 1382 (W.D. Mo. 1983). Additionally, research may be performed in furtherance of 
other categorical purposes, like education. See 26 C.F.R. § 1.501(c)(3)-l(d)(5)(v). Likewise, 
education may be consistent with other exempt purposes. See, e.g. United States v. Dykema, 666 F.2d 
1096, 1100 (7th Cir. 1981) (listing education as a "typical activity" for a religious organization). It 
follows that the IRS may not necessarily "approve" a tax exempt organization "for research or 
educational purposes," as required in 8 C.F .R. § 214.2(h)(l 9)(iv), but rather those activities may be in 
furtherance of: or consistent with, other exempt purposes. 
Because research and education are permissible activities that may be performed in furtherance of 
other qualifying purposes, we view the phrase "approved as a tax exempt organization for research or 
educational purposes by the Internal Revenue Service" to be ambiguous in this context. Accordingly, 
absent some indication that the organization was not authorized to engage in research or education, an 
official IRS recognition letter should suffice to satisfy 8 C.F.R. § 214.2(h)(l9)(iv). 7 
While an organization may be able to establish that it was approved specifically for research purposes, 
this threshold inquiry is generally not the appropriate stage to look behind the IRS approval. As will 
be discussed, the petitioner must separately establish that it is "an organization that is primarily 
7 This conclusion is consistent with the original intent for the exemption from the American Competitiveness and 
Workforce Improvement Act (ACWTA) filing fee, which provided that the "Service should not impose excessive 
evidentiary burdens on employers to comply with the statute." Petitioning Requirements for the H-1 B Nonimmigrant 
Classification Under Public Law 105-277, 65 Fed. Reg. 10678, 10681 (Feb. 29, 2000) (citing House Report 105-825, 
October 21, 1998, 2nd. Sess. 1998). In the AAO' s experience, IRS recognition letters are succinct and do not state a 
specific authorized purpose. 
3 
engaged in basic research and/or applied research." 8 C.F.R. § 214.2(h)(l 9)(iii)(C). That element 
requires a more specific determination based on an examination of the totality of the evidence, which 
may include IRS filings, organizational documents, staffing, financial documents, evidence of 
business activities, and any other evidence that the petitioner may elect to submit. Furthermore, by 
generally limiting the threshold review of whether the petitioner is a nonprofit organization to evidence 
of the IRS approval, we avoid redundant evidentiary inquiries for the separate regulatory provisions. 
Turning to the matter before us, the record includes a letter from the IRS stating that the Petitioner is 
tax exempt under section 501(c)(3) of the IRC, 26 U.S.C. § 50l(c)(3). There is no indication that the 
Petitioner is not authorized to engage in research. The Petitioner therefore satisfies the definition of a 
"nonprofit organization" at 8 C.F.R. § 214.2(h)(l9)(iv). 
B. Is the Petitioner a Nonprofit Research Organization? 
The regulation at 8 C.F.R. § 214.2(h)(l 9)(iii)(C) defines a nonprofit research organization as an 
"organization that is primarily engaged in basic research and/or applied research." Therefore, to be a 
nonprofit research organization, the Petitioner must be "primarily engaged" in research. 
As "primarily engaged" is not defined by statute or regulation, it is appropriate to look to dictionary 
definitions of "primarily" and "engaged," the construction of similar terms in other statutes or 
regulations, and the purpose of the statute being interpreted. See United States v. Patel, 778 F.3d 607, 
613 (7th Cir. 2015). We are expected to give words their ordinary meaning absent persuasive reasons 
to the contrary. Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 566 (2012); Chicago Transit 
Auth. v. Adams, 607 F.2d 1284, 1289 (7th Cir. 1979). 
1. Interpreting "Primarily Engaged" 
a. Interpreting "Primarily" 
The word "primarily" is defined in pertinent part as "first of all: FUNDAMENTALLY, 
PRINCIPALLY." Webster's Third New International Dictionary (2002). In the context ofIRC, the 
Supreme Court has interpreted the term "primarily" to mean "of first importance" or "principally" in 
its ordinary sense. Malat v. Riddell, 383 U.S. 569, 572 (1966). As codified in the IRS regulations, a 
key question is whether the nonprofit organization "engages primarily in activities which accomplish 
one or more of such exempt purposes," as required by 26 C.F.R. § 1.501(c)(3)-1, or "is primarily 
engaged in promoting in some way the common good and general welfare of the people of the 
community," as provided in 26 C.F.R. § 1.501(c)(4)-1 (emphasis added). 8 Specific to 501(c)(3) 
nonprofit organizations, the IRS farther refines the term by distinguishing a "main or primary 
objective" from "incidental or secondary objectives" with regard to nonqualifying political activities. 
See 26 C.F.R. § 1.50l(c)(3)-l(c)(3)(iv). 
8 While we recognize that the term "nonprofit" encompasses other tax exempt organizations, such as labor organizations 
and fraternal beneficiary organizations, we limit our review to the 501 ( c )(3) and 501 ( c )(4) tax exempt organizations that 
include the most common filers. See general/-),' U.S. Master Tax Guide, Exempt Organizations, ,r 601 (CCH 2011 ). 
4 
Given the common meaning of the word "primarily," the Supreme Court's long-held interpretation, 
and the intersection between the Department of Homeland Security (DHS) and IRS regulations on an 
entity's nonprofit status, we conclude that the ordinary meaning of "primarily" as it is used in 8 C.F.R. 
§ 214.2(h)(l 9)(iii)(C) is "principally and as distinguished from incidentally or secondarily." 9 
While we recognize that alternate definitions of "primarily" might reasonably encompass petitioners 
engaged in research on a secondary or incidental basis, a more expansive reading of the regulation 
would potentially undermine section 214(g) of the Act. See, e.g., Board of Governors v. Agnew, 329 
U.S. 441, 446 (1947) ("It is true that 'primary' when applied to a single subject often means first, 
chief, or principal. But that is not always the case."). We view the grant of a cap exemption under 
section 214(g)( 5) of the Act as a matter of legislative grace that should be given a rigid interpretation 
considering how narrowly Congress tailored the section 214(g)(5) exemptions to only three types of 
organizations within the broader statutory scheme to limit the number of initial H-1 B visas ( or grants 
of status) in order to protect the wages and working conditions of U.S. workers. 10 Therefore, in light 
of the general legislative purpose of section 214(g)(5), which provides limited exemptions to the 
numerical limitations in section 214(g)(l)(A), we narrowly interpret the requirement that research 
organizations be "primarily engaged" in basic or applied research. 11 
DHS has long emphasized that the use of the term "primarily" is critical to the integrity of the cap. 
When DHS published its regulations related to certain employment based immigrant and 
nonimmigrant visa programs in 2016, several commenters recommended deleting the words 
"primarily" and "primary" from 8 C.F.R. § 214.2(h)(l 9)(iii)(C). 12 DHS declined to remove the terms, 
observing that such requirements had been in place since 1998 with regard to fee exemptions, and for 
more than a decade for cap exemptions. DHS farther noted that "primarily" and "primary" 
requirements were not subject to any comments when the fee regulation was promulgated. DHS also 
remarked that the commenters who suggested deletion of the terms did not provide legal or policy 
justifications for eliminating those requirements. DHS did not discuss the meaning of the terms, but 
emphasized that maintaining the continued reference to "primarily" and "primary" would "serve to 
9 While we recognize that the Act utilizes the word ·'primarily" in multiple provisions, this interpretation stands alone for 
purposes of 8 C.F.R. § 214.2(h)(l 9)(iii)(C). Section 214(g)(5) of the Act does not use the word "primarily" but rather the 
Immigration and Naturalization Service implemented the standard through a rulemaking that referenced and relied on the 
IRS nonprofit scheme. Petitioning Requirements for the H-1 B Non immigrant Classification Under Public Law I 05-2 77, 
63 Fed. Reg. 65657, 65658 (Nov. 30, 1998) (interim rule with request for comments); 65 Fed. Reg. I 0678 (Feb. 29, 2000) 
(final rule). 
10 Recognizing that the H-1 B cap exemption is a matter of legislative grace, we note that courts have recognized that other 
statutory exemptions should be construed narrowly. See, e.g. Bingler v. Johnson, 394 U.S. 741, 752 (1969) ("[E]xemptions 
from taxation are to be construed narrowly[.]"); see also "Strict Construction of Statutes Granting Legal Advantages or 
Economic Values-Grants of Tax Exemptions," 3 SUTHERLAND STATUTORY CONSTRUCTION§ 63:8 (7th ed.). 
11 Notably, ACWIA fee exemptions are also narrowly interpreted. In implementing ACWIA, which required an additional 
$500 fee for ce11ain H-IB petitions, USCIS declined to expand the definitions of fee exempt organizations, stating that 
USCIS "interprets the statute narrowly [to] define those entities exempt from paying the $500 filing fee." See Petitioning 
Requirements for the H-IB Nonimmigrant Classification under Public Law 105-277, 65 Fed. Reg. at 10680. DHS 
regulations at 8 C.F.R. § 214.2(h)(8)(iii)(F) incorporate the definition of "nonprofit research organization" at 8 C.F.R. 
§ 214.2(h)(l9)(iii)(C) for ACWIA fee exemption, and the term should be given the same meaning in both contexts. 
12 See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled 
Nonimmigrant Workers, 81 Fed. Reg. 82.398, 82,446 (Nov. 18, 2016) (final rule, effective Jan. 17, 2017). 
5 
protect the integrity of the cap and fee exemptions as well as clarify for stakeholders and adjudicators 
what must be proven to successfully receive such exemptions." 13 
2. Interpreting "Engaged" 
We must give equal weight to the word "engaged." The dictionary defines "engaged" as 
"OCCUPIED, EMPLOYED." Webster's Third New International Dictionary (2002). In addition, the 
definition of "engage" includes "to provide occupation for," "require the use of/' and "to involve or 
entangle ... in some affair or enterprise." Id. 
While the word "engage" requires an organization to be "occupied" or "employed" in research, a 
governmental research organization may be exempt from the numerical cap under section 
2 l 4(g)( 5)(B) of the Act if its primary mission is either "the performance or promotion" of research 
( emphasis added). "Performance" is defined as "the act or process of carrying out something: the 
execution of an action," while "promotion" is defined as "the act of setting up or furthering a business 
enterprise." 14 Id. In this context, "engaged" and "performance" are used to denote direct action. But 
the word "promotion" is meaningfully distinguishable since the act of furthering or contributing to the 
growth of research is different from directly engaging in the activity of research. Id. A requirement 
for "direct action"- that a nonprofit research organization must be directly occupied or employed in 
research-is clear when we compare the regulatory text at 8 C.F.R. § 214.2(h)(19)(iii)(C) as it relates 
to nonprofit research organizations with the text for governmental research organizations. 
3. Determining "Directly and Principally" 
To determine whether an organization is "directly and principally" engaged in research, we will 
evaluate the proportion of the organization's operations dedicated to research against its unrelated 
trade or business activities. If an organization regularly engages in two activities, such as research 
and an unrelated business operation, then research must constitute the principal activity with the 
unrelated business operation being an incidental or secondary activity. If the business operation is a 
substantial part of the organization's activities, however, it may not detract from research being the 
primary activity. The business operation may be in furtherance of the organization's research 
activities, but the organization may not have been operated for the primary purpose of carrying out 
that business operation. We will evaluate the purpose of the organization and the proportion of the 
organization's operations dedicated to research against other activities to determine if the organization 
is directly and principally engaged in research. 
C. Is the Petitioner "Directly and Principally" Engaged in Research? 
Despite the Director's detailed and specific request for evidence (RFE), the Petitioner has not 
submitted sufficient relevant, credible and probative documentary evidence to establish by a 
13 Id. 
14 In addition, "promote" is defined as "to contribute to the growth, enlargement, or prosperity of" Webster's Third New 
International Dictionary (2002). 
6 
preponderance of the evidence that the Petitioner is "primarily engaged in basic research and/or 
applied research" as required by 8 C.F.R. § 214.2(h)(l 9)(iii)(C). 15 
Certain factors may assist in determining whether a petitioner is directly and principally engaged in 
research, without one single factor becoming a determinative factor. Accordingly, we turn to an 
analysis of the evidence in the record to determine whether it establishes, by a preponderance of the 
evidence, that the Petitioner is directly and principally engaged in research. While the following 
discussion examines specific sources of information, we reviewed the totality of the record and 
ultimately conclude that it is not sufficient to meet the Petitioner's burden of proof. 
1. Form I-129, Petition for a Nonimmigrant Worker 
On the Form I-129, the Petitioner described itself as an "international grant-making and research 
network", and a "humanitarian not-for-profit organization." The Petitioner designated itself as an 
"Other Social Advocacy Organization" under the North American Industry Classification System 
(NAICS) code 813319, which is described as "[e]stablishments in this industry address issues, such 
as peace and international understanding; community action ( excluding civic organizations); or 
advancing social causes, such as firearms safety, drunk driving prevention, or drug abuse awareness. 
These organizations may solicit contributions and offer memberships to support these causes." 16 The 
NAICS code does not indicate that the Petitioner is an establishment directly and principally engaged 
in research. 
2. Mission Statement 
In the letter of support, the Petitioner stated that it is a nonprofit organization established as a "private 
operating research and grant-making foundation that develops and implements a range of programs in 
civil society, education, media, public health, and human and women's rights, as well as social, legal, 
and economic reform." According to the mission statement submitted by the Petitioner, it stated that 
it works to "build vibrant and tolerant societies whose governments are accountable and open to 
participation of all people." The statement goes on to assert, in part, that the Petitioner has a mission 
to "seek to strengthen the rule of law;" "help to shape public policies;" "implement initiatives;" "build 
alliances"; and "protecting and improving the lives of people in marginalized communities." Upon 
review of the mission statement, the mission of the Petitioner does not support a finding that it directly 
and principally engages in research. 
15 The Director requested additional evidence such as copies of organizational documents, including the articles of 
incorporation, bylaws or similar documentation. The Director noted that the Petitioner has not indicated the propo11ion of 
its business operations dedicated to research activities and publications with respect to all other business activities and 
requested evidence such as annual reports or similar documentation that describe the Petitioner's activities, incomes, 
expenses, number of workers, and types of works, or financial statements to include breakdO\vn of incomes and expenses. 
16 According to the U.S. Census Bureau, NATCS was developed to classify business establishments for statistical purposes 
but is also frequently used for various administrative, regulatory, contracting, taxation, and other non-statistical purposes. 
NAT CS generally determines the primary business activity by "relative share of production costs and/or capital investment" 
but also uses other variables such as "revenue, value of shipments, or employment" as proxies. For more information see 
https://www.census.gov/cgi-bin/sssd/naics/naicsrch?input=22l l2l&search=20l 7+NAICS +Search&search=2017 (last 
visited Feb. 27, 2020). 
7 
3. Affidavits from Personnel and Publications 
a. ~1------~~cting Co-Director ofthe~l ____ ~IProgram 
The Petitioner submitted an affidavit froml I Acting Co-Director of the I 
Program, who oversees 54 employees. I I stated that "one of the goals of the._ ____ _. 
Program is to research public health issues ... and study how, as an organization, we can apply our 
research and our resources to best solve those issues." In addition, she stated that the employees she 
supervises are "tasked with utilizing the findings from our own research and our partner organizations 
('grantees') to produce reports on our progress and prepare research and models of action that can be 
replicated and applied in other jurisdictions and other organizations." 
The Petitioner provided copies of six reports produced by thel I Program staff The dates 
for publication of these reports are: 2007, 2008, 2009 (two reports), 2010, and 2017. In addition, the 
six reports were authored by a total of five em]loyees. Six published reports in a span of 10 years do 
not sufficiently establish that the I Program staff are principally engaged in research. In 
addition, the affidavit indicated that the program has 54 employees but it appears that only five 
employees have authored reports that included research activities. 
Furthermore, it is not clear if the Petitioner's staff engaged in the research necessary to make these 
reports, or instead if it published reports based on research completed by other sources or 
organizations. For example, in the report entitled, I I I [" the acknowledgements section stated "the authors are grateful to the 
following persons for research assistance and help fol comments on drafts of this report," and some of 
these named individuals a eared to work at other or anizations. In addition the re ort entitled, 
'-------------------------------.---------.~ ' under 
acknowledgments, stated that the document was written and researched by.___~ __ ___, and it was 
"reviewed and commented" by the Petitioner's staff These publications do not sufficiently establish 
that the Petitioner is directly and principally engaged in research. For example, the Petitioner did not 
provide information as to what proportion of its operations and personnel engage in research and 
publications. Further, the reports and publications indicate that the Petitioner's personnel collaborated 
with colleagues from other organizations but the record does not establish whether the Petitioner's 
personnel were the primary writers of these articles or if they assisted other authors. The record also 
does not establish whether the Petitioner provided the funding and resources for the research. The 
Petitioner does not provide sufficient information for a comparison of the time and resources spent on 
the published articles to the rest of its activities and operations. 
b.~I ----~I Senior Officer for Research,!.__ _____ ~ 
The Petitioner submitted an alfidavit from I I lenior Olficer for Research within thel I 
I I Accordinl to I l thd~----~ employs 83 staff members, with 46 located 
in the United States . ._ ___ ____.~ted that "research is one of the I ts most valuable 
undertakin2:s because it underpins our public-interest litigation and advocacy, is the foundation upon 
which the [ I defends and promotes human rights and the rule of law, and works to 
effectively build more open societies around the world."I I also stated, "I currently oversee 
some 55 streams of thematic and geographic applied research," and she developed research tools and 
8 
offers training resources. The affidavit did not provide additional information of the listed streams of 
research. 
The Petitioner submitted documentation of the research tools developed for th~I For 
example, the Petitioner submitted the following documents: "Principles of Research;" "Research 
Planning Template;" "Research tool, Good Survivor/Witness Interview Practices," and "Human 
Rights Research Resources." Upon review, several documents appear to provide the Petitioner's 
employees with standard operating procedures. Although the Petitioner has tools for research 
capabilities, it does not provide sufficient context of the research projects to establish that the Petitioner 
directly and principally engages in research, such as the personnel required to work on the project, the 
budget allotted for the project, or the frequency of such projects. 
c. Affidavit of~I ---~I Head of~I -----~ 
The Petitioner submitted an affidavit froml l Head oti I ~I---~ 
stated that "I connect [the Petitioner's] staff to authoritative internally-and externally-generated 
information to support their research." In addition, she stated that "I managel I' 
subscriptions to scholarly research databases, academic journals, and authoritative data sources, which 
.__ _____ __, selects based on regular input and feedback from [ the Petitioner's] staff on which 
resources best align with and support their research." 
Although the Petitioner's business operations provide resources for research, this affidavit does not 
provide sufficient context of this resource. Although employees have access to research databases and 
information to support research, the documentation does not provide sufficient information regarding 
the actual research projects to establish that the Petitioner primarily engages in research. 
4. Research Projects for thel.__ _____ ~ 
In the response to the Director's RFE, the Petitioner explained that the ~-----~is a program 
of [the Petitioner], consisting of a team of human rights lawyers and staff that research and pursue 
legal work in order to support the broader mission and values of [ the Petitioner]" The Petitioner listed 
some areas ofresearch including: National Security and Human Rights; Putting the Law in People's 
Hands; Citizenship and Equality; Migration; Criminal Justice; International Justice; Anticorruption; 
Economic Justice; and, Building Human Rights. 
The Petitioner submitted an "ongoing list of each of the I f s research projects" which 
consisted of 65 projects. However, the list does not establish the amount of time required to perform 
the listed projects or the number of staff for each project. Without more context of the amount of work 
and staff required to complete these projects, it is hard to determine if the Petitioner is primarily 
engaged in research. Further, this project list is for thel lunit only and the record does 
not sufficiently establish what proportion of the Petitioner's organization is engaged in these projects. 
The Petitioner also provided a list of publications that derived from thel I unit. The 
dates range from 2014 to 2018. Upon review of the publications, it appears that for some of the reports 
individuals outside the Petitioner's employment were responsible for the research. For example, the 
report entitled, "Strengthening from Within" stated in the acknowledgements that the "research and 
9 
initial drafting was carried out b and.__ ______ _,, both of whom served as 
consultants for the~-----~" The article entitled, "Strategic Litigation Impacts" stated under 
acknowledgments that the report was written by an individual not employed by the Petitioner, and the 
Petitioner sponsored the research and writing of the report. As noted above, the reports and 
publications indicate that the Petitioner's personnel collaborated with colleagues from other 
organizations but the record does not establish whether the Petitioner's personnel were the primary 
writers of these articles or if they assisted other authors. The Petitioner does not provide sufficient 
information for a comparison of the time and resources spent on the published articles to the rest of its 
activities and operations. 
5. IRS Form 990 and Organization 
The Petitioner submitted the 2016 IRS Form 990-PF, Return of Private Foundation. The Form 990 is 
an informational tax form that most tax-exempt organizations file annually, and it gives the IRS an 
overview of the organization's activities, governance and detailed financial information. The Form 
990 also includes a section for the organization to outline its accomplishments in the previous year to 
justify maintaining its tax-exempt status. 
The Director noted in her decision that information regarding distributions and grants do not appear 
to be reflective of research investments or activities, but rather distributions to grant applicants for 
various research projects or educational endeavors. The Petitioner asserts that the Director's analysis 
of the tax return is flawed and nonprofits are "not required to explain on their tax filings which of their 
disbursements in a given year are for research purposes and which ones are not." The Petitioner farther 
explained that itemized disbursements on the Form 990 totaled only $23 million, a small percentage 
compared to the total expenses and disbursements of $210 million. In addition, the Petitioner noted 
that the tax forms show an operating cost of $186 million that included "staff salaries, fees for 
independent contractors, the cost of subscriptions to research materials, etc. - to research functions." 
Although the Petitioner claims that the operating costs indicated "research functions," it is impossible 
to determine this without information on how the organization supports and develops research, such 
as research budgets, business plans, or other business metrics. 
In response to the RFE, the Petitioner stated that it "actually engages in research and directly employs 
researchers throughout the organization" and also provides a grant-making function. The Petitioner 
explained that it is primarily engaged in conducting research by both employing personnel that engage 
in research and awarding or recommending grants to recipients who conduct research. However, the 
Petitioner did not provide sufficient information of the personnel such as an organizational chart, job 
titles and descriptions and information regarding the research functions for the employees to indicate 
that it is primarily engaged in research. In addition, the Petitioner did not provide sufficient 
information regarding the grant-making process such as the personnel involved in the decision, the 
type of grantees or the research required to elect a grantee. 
While we recognize that research supports the Petitioner's operations, the record does not show that 
the Petitioner is directly and principally engaged in research. 17 Many organizations engage in research 
17 For example. IRS distinguishes scientific research rrom activities ordinarily performed incident to an organization's 
business operations. 26 C.F.R. § 1.501 ( c )(3)-1 ( d)(S)(ii) states "scientific research does not include activities of a type 
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to discover new knowledge, find solutions to problems, cultivate innovation, and more. However, 
granting cap exemption based on broad meaning of research without considering whether operations 
of an organization are principally engaged in research, would not be consistent with very limited 
exemptions provided in section 214(g)(5) of the Act. 
6. Insufficient Evidence 
The regulations affirmatively require the petitioner to establish eligibility at the time of filing. 8 C.F.R. 
§ 103.2(b)(l). When USCIS regulations specify required initial evidence, the petitioner must either 
submit that evidence or, if such evidence is unavailable, secondary evidence. 8 C.F .R. § 103 .2(b )(2)(i). 
If secondary evidence is unavailable, then a petitioner may submit two or more affidavits to establish 
eligibility. Id. 
As with this current matter, there are many immigration benefits, or corollary issues related to 
immigration benefits, where the regulations and form instructions do not mandate required initial 
evidence but instead state a general eligibility requirement. See, e.g. 8 C.F.R. § 214.2(h)(19)(vi) 
(requiring submission of "supporting evidence establishing that it meets one of the exemptions 
described at paragraph (h)(l 9)(iii) of this section"). In these cases, while the scope and content of the 
submitted evidence is left entirely to the petitioner, it is equally important that the petitioner provide 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. "Truth is 
to be determined not by the quantity of evidence alone, but by its quality." Matter of E-M-, 20 I&N 
Dec. at 80. 
Upon review of the submitted evidence, we conclude that the Petitioner has not established by a 
preponderance of the evidence that it is primarily engaged in research. While the Director requested 
specific and relevant evidence in the RFE, the Petitioner did not submit sufficient documents in 
response. Furthermore, the Petitioner did not provide a brief on certification to rebut or overcome the 
Director's concerns. The record does not establish that the Petitioner is a nonprofit research 
organization and, therefore, the Beneficiary does not qualify for cap exemption as an H-lB 
nonimmigrant employed at a nonprofit research organization. See 8 C.F.R. § 214.2(h)(19)(iii)(C). 
While we acknowledge that the Petitioner is "focused on research - researching problems in the world, 
researching possible solutions for those problems, and researching how to implement those solutions," 
the regulation at 8 C.F.R. § 214.2(h)(19)(iii)(C) defines a nonprofit research organization as one that 
is "primarily engaged" in research, which we interpret to mean directly and principally engaged in 
research. Based on the totality of the evidence in the record, and considering its research activities in 
proportion to its other activities, we conclude that the record does not demonstrate that the Petitioner 
is directly and principally engaged in research. The research conducted by Petitioner is incidental, or, 
at best, secondary to its principal activities: making grants to promote social, legal and economic 
reforms. 
ordinarily carried on as an incident to commercial or industrial operations, as for example, the ordinary testing or inspection 
of materials or products or the designing or construction of equipment, buildings, etc." Similarly, what the Petitioner 
describes as research is carried on as incidental to its operations. 
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7. Prior Approval of Cap-Exempt Status 
As noted in the Director's decision, the Petitioner historically applied for an exemption to the cap by 
its affiliation with institutions of higher education. In 201 7, the Petitioner began filing for a cap 
exemption as a nonprofit research organization. 18 The Petitioner noted that USCIS has approved other 
petitions that had been previously filed on behalf of Petitioner, but cites no legal authority that would 
support a finding that this petition should be approved based on prior approvals. 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter of Church Scientology 
Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). "A prior approval. .. does not obligate 
[USCIS] to approve a subsequent petition or relieve the petitioner of providing sufficient 
documentation to establish current eligibility." 55 Fed. Reg. 2606, 2612 (Jan. 26, 1990). Furthermore, 
the AAO is not be bound to follow a contradictory decision of a service center. La. Philharmonic 
Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000) affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
More importantly, if the prior approvals were premised on a similar dearth of evidence, the approvals 
would have been issued in error. Despite any number of previously approved petitions, USCIS does 
not have authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. 
III. CONCLUSION 
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 petition is denied. 
18 DHS regulations were revised in January 2017, and subsequent to those regulatory changes, the Petitioner no longer 
qualified as a nonprofit entity related to or affiliated with an institution of higher education. See Retention of EB- L EB-
2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled N onimmigrant Workers, 81 Fed. Reg. 
82398. 
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