dismissed H-1B Case: Not Specified

(b)(6)
DATE: JUN 0 9 2015 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Imm igration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110 l(a)(l5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form l-290B web page (www .uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
n osenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
·-----·- ----· ----
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
I. PROCEDURAL BACKGROUND 
U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient 
number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015 as allocated at section 
214(g)( l) (A) of the Immigration and Nationality Act, 8 U.S.C. § 118 4(g)(1)(A). Thereafter, the 
petitioner filed a Petition for a Nonimmigrant Worker (Form I-129) to classify the beneficiary as an 
H-1B temporary nonimmigrant worker pursuant to section 10 l (a)( l 5)(H)(i)(b) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director reviewed the submission and concluded: (1) the petition was subject to the numerical 
cap limitation, and (2) the petition could not be approved because the cap for that fiscal year had 
been reached. Accordingly, the Director denied the petition. The matter is now before us on appeal. 
Upon de novo review, we conclude that the petitioner has not overcome the specified basis for denial 
of the petition.1 The appeal will be dismissed. 
II. LEGAL FRAMEWORK 
Unless exempted, the total number of temporary workers who may be issued initial H-1B visas or 
otherwise provided H-1B nonimmigrant status in a fiscal year is 65,000 with an additional 20,000 
provided to U.S. post-graduate degree holders. Section 214(g)( l )(A)(vii) and (5)(C) of the Act, 
8 U.S.C. § 1184(g )( l )(A)(vii) and (5)(C). See also, 8 C.F.R. § 214.2(h)(8)(i)(A) and 8 C.F.R. 
§ 214.2(h)(8 )(ii)(A). The numerical limitation is known as "the cap." 
According to section 214(g)(7) of the Act, 8 U.S.C. § 118 4(g)(7): 
Any alien who has already been counted within the 6 years prior to the approval of a 
petition .. . toward the numerical limitations of paragraph (l )(A) shall not again be 
counted toward those limitations unless the alien would be eligible for a full 6 years 
of authorized admission at the time the petition is filed. Where multiple petitions are 
approved for 1 alien, that alien shall be counted only once. 
Section 101(a)(13)(A) of the Act states that "[t]he terms 'admission' and 'admitted' mean, with 
respect to an alien, the lawful entry of the alien in the United States after inspection and 
authorization by an immigration officer." 
1 We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). 
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Each beneficiary shall be counted against the cap unless he/she is exempt from the numerical 
limitation. 8 C.F.R. § 214.2(h)(8)(ii)(A). When calculating the numerical limitations or the number 
of exemptions for a given fiscal year, USCIS will make numbers available to petitions in the order in 
which the petitions are filed and make projections of the number of petitions necessary to achieve 
the numerical limit of approvals, taking into account historical data related to approvals, denials, 
revocations, and other relevant factors. 8 C.F.R. § 214.2(h)(8)(ii)(B). If the total numbers available 
in a fiscal year are used, new petitions and the accompanying fee shall be rejected and returned with 
a notice that numbers are unavailable for the particular nonimmigrant classification until the 
beginning of the next fiscal year. 8 C.F.R. § 214.2(h)(8)(ii)(D). A petition received after the total 
numbers available in a fiscal year are used stating that a beneficiary is exempt from the numerical 
limitation will be denied and the filing fees will not be returned or refunded if USCIS later 
determines that the beneficiary is subject to the numerical limitation. ld. 
The regulations further specify that a petition may not be filed or approved earlier than six months 
before the date of actual need for the beneficiary's services. 8 C.F.R. § 214.2(h)(9)(i)(B). When an 
approved petition is not used because the beneficiary does not apply for admission to the United 
States, the petitioner shall notify the Service Center Director who approved the petition that the 
number has not been used. 8 C.F.R. § 214.2(h)(8)(ii); Volume 9 of the Foreign Affairs Manual, 
9 FAM 41.53 note 23. The petition shall be immediately and automatically revoked and USCIS will 
take into account the unused number during the appropriate fiscal year. 8 C.F.R. § 214.2(h)(8)(ii) 
and (11 )(ii). 
With regard to revocations, the regulations state that the petitioner shall immediately notify USCIS 
of any changes in the terms and conditions of employment of a beneficiary which may affect 
eligibility. 8 C.F.R. § 214.2(h)(ll)(i )(A). 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. !d. 
III. DISCUSSION 
In the instant case, the petitioner's Form I-129 was filed after USCIS's announcement that the cap 
had been reached for the relevant fiscal year. The petitioner stated that the petition was filed for 
"new employment" with a request that the U.S. Consulate in Manila be notified. The petition was 
accepted for processing because the petitioner claimed that ·the petition was exempt from the 
numerical limitation. Specifically, on the Form I-129, the petitioner reported that the beneficiary 
was previously granted status as an H-lB nonimmigrant within the past six years. However, upon 
review, we note that the beneficiary never held H-lB status. 
That is, prior to the instant filing another employer, . submitted an H-lB petition on 
behalf of the beneficiary for FY 2015. The petition was approved for employment commencing on 
October I, 2014. Prior to the start date, notified the Director that it would not be 
employing the beneficiary and requested that the H- lB petition be withdrawn. The petition was 
immediately and automatically revoked so that the unused visa number could be taken into account 
during the appropriate fiscal year. 8 C.F.R. § 214.2(h)(8)(ii) and (11). We note that despite the 
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petitioner's suggestion to the contrary, neither the statute nor the regulations permit a petitioner to 
substitute itself for another employer for the use of a cap number. 
Moreover, the petitioner states that the Director's adjudication of the instant petition was unfair. The 
petitioner has not demonstrated, however, any error by the director in conducting a review of the 
petition. Nor has the petitioner demonstrated any resultant prejudice such as would constitute a due 
process violation. See Vides-Vides v. INS, 783 F.2d 1463, 1469-70 (9th Cir. 1986); Nicholas v. INS, 
590 F.2d 802, 809-10 (9th Cir. 1979); Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974), 
cert. denied,419U.S. l113 (1975). 
The petitioner further suggests that the beneficiary is eligible for employment under the portability 
provisions at 214(n) of the Act. The H-IB portability provisions, however, are not applicable here 
as, inter alia, the beneficiary never held H-1B status and was not lawfully admitted to the United 
States. Further, the petitioner did not file the instant petition prior to the date of expiration of the 
period of the beneficiary's authorized stay. Moreover, the availability of a cap number, where 
required, is a prerequisite to proper filing of an H-1 B petition. 
Upon review of the totality of the evidence, we conclude that the petitioner has not shown by a 
preponderance of evidence that the instant petition is exempt from the numerical limitations. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) "[t]he 'preponderance of the evidence' 
standard requires that the evidence demonstrate that the applicant's claim is 'probably true,' where the 
determination of 'truth' is made based on the factual circumstances of each individual case"). 
Therefore, the appeal will be dismissed. 
V. 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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.