dismissed H-1B Case: Pharmaceuticals

U.S. Citizenship 
and Immigration 
Services 
In Re: 9689884 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 18, 2020 
The Petitioner, a company engaged in the research and development of pharmaceuticals, seeks to 
temporarily employ the Beneficiary as a scientific associate II 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary qualifies for exemption from the fiscal year 2019 (FY 19) H-lB cap, 
which was reached prior to the filing of this petition. On appeal, the Petitioner submits a brief and 
contends that the petition should be approved. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 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) . 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 
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 Immigration 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). 
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). 
When an approved petition is not used and the Petitioner wishes to withdraw the petition, the petitioner 
shall notify the service of any changes in the terms and conditions of employment. The petition shall 
be immediately and automatically revoked and users will take into account the unused number 
during the appropriate fiscal year. 8 e .F.R. § 214.2(h)(8)(ii)(e), (l l)(ii) . 
With regards to revocation , the regulations pursuant to 8 e.F.R. § 214.2(h)(l l)(ii) state: 
11) Revocation of approval of petition-(i) General. (A) The petitioner shall 
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)(l5)(H) 
of the Act and paragraph (h) of this section. An amended petition on the form prescribed 
by users should be filed when the petitioner continues to employ the beneficiary. 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. However, H-2A and 
H-2B petitioners must send notification to DHS pursuant to paragraphs (h)(5)(vi) and 
(h)( 6)(i)(F) of this section respectively . 
(B) The director may revoke a petition at any time, even after the expiration of the 
petition. 
(ii) Immediate and automatic revocation. The approval of any petition is immediately 
and automatically revoked if the petitioner goes out of business, files a written 
withdrawal of the petition , or the Department of Labor revokes the labor certification 
upon which the petition is based. 
II. ANAL YSrS 
The Petitioner has not established that the Beneficiary qualifies for the cap exemption. Specifically, 
we note that the Beneficiary's approved H-lB visa was revoked. 
Prior to filing this petition, another employer filed an H-lB petition on behalf of the Beneficiary for 
fiscal year 2019 (FY 19). The petition was approved for employment commencing on October 1, 
2018. 3 The prior employer notified users that it wished to withdraw the approved petition . The 
petition was immediately and automatically revoked so that the unused visa number could be taken 
into account during the appropriate fiscal year. 8 e.F.R. § 214.2(h)(8)(ii)(e), (l l)(ii). 
Thereafter, the Petitioner filed the instant petition on behalf of the Beneficiary after the fiscal year 
2019 (FY 19) cap was reached. On the Form r-129, the Petitioner indicated that the Beneficiary was 
exempt from the H-lB cap because he was already counted against the cap in FY 19. The Director 
did not agree and denied the petition. 
3 .... 1 _____ ..... I was appro ved from October 1, 2018 to August 5, 2021. It was revoked effective Augu st 3, 2018 . 
2 
On appeal, the Petitioner contends that 8 C.F.R. § 214.2(h)(8)(ii)(C) does not apply when an approved 
petition is not used for any reason other than when the beneficiary does not seek admission to the U.S. 
Further, the Petitioner states that it "withdrew its petition not due to the Beneficiary's failure to apply 
for admission, but rather, internal reason unrelated to the Beneficiary, and while the Beneficiary was 
in fact physically present in the United States and admitted as a F-1 Student and Employee." The 
regulation does not provide a different outcome based on the reason for the request of a withdrawal. 
Instead the regulation indicates that the approval is immediately and automatically revoked upon the 
receipt of a withdrawal from the Petitioner. Thus, in this case, the Petitioner withdrew the approved 
petition which was immediately and automatically revoked so that the unused number could be taken 
into account during the appropriate fiscal year. On appeal, the Petitioner also contends that the 
language "taken into account" indicates that USCIS will consider each situation on a flexible case-by­
case basis. However, the regulation does not specify the use of discretion. 
The Petitioner has identified no error in the Director's analysis. We agree with the Director that 
8 C.F.R. § 214.2(h)(8)(ii)(C) applies here. The Beneficiary never received H-lB status as his prior 
petition was revoked. The revocation of the Beneficiary's prior H-1 B approval rendered his H-1 B 
number unused, thereby subjecting him to the H-1 B cap for FY 19. 
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 appeal is dismissed. 
3