dismissed H-1B Case: Research

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-F-I-H-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 18,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a not-for-profit corporation, seeks to temporarily employ the Beneficiary under the 
H-1B nonimmigrant classification. See Immigration and Nationality Act (the Act) § 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The Director, California Service Center, 
denied the petition. The matter is now before us on appeal. Upon de novo review, we will dismiss 
the appeal. 
I. ISSUE 
The issue is whether the Petitioner has established that the petition is exempt from the H -1 B 
numerical limitations under section 214(g)(5)(B) of the Act. 
II. THE H-1B CAP 
A. Legal Framework 
In general, H-1B visas are numerically capped by statute. Pursuant to section 214(g)(l)(A) of the 
Act, the total number ofH-lB visas issued per fiscal year may not exceed 65,000 ("H-1B Cap"). 
An exemption from the H -1 B is available for certain petitions. Section 214(g)( 5) of the Act states, 
in pertinent part: 
The numerical limitations ... shall not apply to any nonimmigrant alien issued a visa 
or otherwise provided [H -1 B status] who-
(A) is employed (or has received an offer of employment) at an institution of 
higher education (as defined in section 1001(a) of Title 20), or a related or 
affiliated nonprofit entity. 
(B) is employed (or has received an offer of employment) at a nonprofit research 
organization or a governmental research organization; or 
(b)(6)
Matter ofC-F-1-H-, Inc. 
(C) has earned a master's or higher degree from a United States institution of 
higher education (as defined in section 101 (a) of the Higher Education Act of 
1965 (20 U.S.C. 1001(a)), until the number of aliens who are exempted from 
such numerical limitation during such year exceeds 20,000. 
A non-profit research organization or governmental research organization is defined as follows: 
A nonprofit research organization is an organization primarily engaged in basic 
research and/or applied research. A governmental research organization is a United 
States Government entity whose primary mission is the performance or promotion of 
basic research and/or applied research. Basic research is general research to gain 
more comprehensive knowledge or understanding of the subject under study, without 
specific applications in mind. Basic research is also research that advances scientific 
knowledge, but does not have specific immediate commercial objectives although it 
may be in fields of present or potential commercial interest. It may include research 
and investigation in the sciences, social sciences, or humanities. Applied research is 
research to gain knowledge or understanding to determine the means by which a 
specific, recognized need may be met. Applied research includes investigations 
oriented to discovering new scientific knowledge that has specific commercial 
objectives with respect to products, processes, or services. It may include research 
and investigation in the sciences, social sciences, or humanities. 
8 C.F.R. § 214.2(h)(19)(iii)(C). Notably, 8 C.F.R. § 214.2(h)(8)(ii)(B) states, in part: 
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 and refunded. 
In visa petition proceedings, the burden is on the Petitioner to establish eligibility for the benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 
2013) (citing Matter ofBrantigan, 11 I&N Dec. 493,495 (BIA 1966)). 
B. The Petitioner 
The Petitioner claimed that it is exempt from the H-1B cap as a "nonprofit research organization" 
that is primarily engaged in basic research. On the Form 1-129, the Petitioner reported that it was 
established in (approximately years prior to this H-1B filing) and that it has four 
employees. On the Form I-129, the Petitioner stated that its gross annual income is $97,000, and its 
net annual income is $1,000. The Petitioner's 2014 Federal Tax Return indicates that it provided 
$9,410 in a grant to the and that it paid $24,620 in international recruitment 
costs. The Petitioner is located in Florida. 1 The tax return also indicates that its 
1 The Petitioner claimed that the Beneficiary would be employed at a client site in Indiana (approximately 
2 
(b)(6)
Matter ofC-F-1-H- , Inc. 
chairman and directors devoted an average of .5 hours per week to their positions, the director of 
administration devoted two hours per week to her position, and the secretary devoted one hour per 
week to his position. 
C. Analysis 
The regulation at 8 C .F.R. § 214.2(h)(19)(iii)(C) defines a nonprofit research organization as an 
organization that is primarily engaged in basic research and/or applied research. The exemption, 
therefore, is not applicable for those who speculatively may engage in basic and/or applied research. 
Rather, the exemption is available for an employer who demonstrates, intra alia, that it is currently 
engaged in such research? 
The Petitioner provided several documents in support of its assertion that it is exempt from the H-IB 
cap, including (1) a document entitled 
(2) a document entitled 
(3) its 
2014 Income Tax Return/ (4) printouts from its website; and (5) its Articles of Incorporation. We 
carefully examined each piece of evidence in the record; however, the documentation does not 
demonstrate that the Petitioner "is primarily engaged in basic research and/or applied research." 
For example, we reviewed the papers entitled 
and 
The Petitioner 
claims that these papers are evidence of its current research. As a preliminary matter, we note that 
the papers are proposals. A proposal is: " (1) Something offered for consideration or acceptance, a 
suggestion. (2) The act of putting something forward for consideration." Black ·s Lm.v Dictionm y 
1413 (1Oth ed. 2014 ). The papers discuss anticipated start and completion dates for the research, the 
estimated costs, and possible survey questions. The documents state that "[t]he proposed research 
will be conducted ... " and "[t]his proposal aims to test. ... " The Petitioner has not provided 
evidence to demonstrate that the research projects are in progress or have been conducted.4 
Furthermore, the paper 
does not mention the Petitioner. Rather, the paper specifically states 
I, 140 miles from the Petitioner 's business operations). 
2 A petitioner must establish that it is eligible for the benefit request at the time of filing and must continue to be eligible 
through adjudication. 8 C.F.R. § 103.2(b). 
3 We observe that the Petitioner's total revenue for 2014 came from a healthc are 
staffing agency. It appears that some of the Petitioner 's employees are also employed by 
as part of its management team . 
4 The instant H-lB petition was filed on January 28, 2015 . Although the Petitioner submitted research proposals, it does 
not appear that any further action occurred . For example , one of the proposals states that "[ w ]e hope to conduct the 
research in June 2013, with subsequent data analysis in July and August, 2013" and that it "will present the finding at a 
future conference ... which will be held 2014 in Nevada ." 
3 
(b)(6)
Matter ofC-F-1-H-, Inc. 
that it was written by - and the research will be conducted by -
and There is no indication that the Petitioner was involved in the 
preparation of the proposal or that the writers are employees or otherwise affiliated with the 
Petitioner. There is a lack of evidence supporting a conclusion that the data, evaluation, and/or 
analysis was prepared by or for the petitioning organization as the document does not contain any 
information connecting it to the Petitioner. 
The document 
indicates that if the proposal should move forward, then the 
Petitioner will be responsible for "[t]he development and production of outreach materials ... [that] 
consists of printing brochures and flyers and office supplies." In addition, the document states that 
the Petitioner will develop a website, "as well as technology to deliver the text messages at the 
appropriate intervals." The Petitioner did not provide any further documentation, such as a contract 
or work statement to demonstrate the nature of its work to be performed on this proposed project. 
Without more, these tasks do not establish the Petitioner's role in this proposed study would be to 
engage in basic research. 
Furthermore, the Petitioner has not provided evidence to establish what portion of its time and 
resources are dedicated to research activities, and what portion of its time and resources are 
dedicated to other programs and services. While the Petitioner claims in the appeal that "[t]he only 
activity undertaken by the Petitioner is basic research," the documentation provided indicates that its 
operations include placing healthcare workers at third-party client sites, including the Beneficiary in 
this case. Without more, it has not demonstrated that it is primarily engaged in basic research. 
From the evidence provided, we are unable to conclude that the Petitioner is a nonprofit research 
organization that is primarily engaged in basic research. Therefore, the Petitioner has not established 
that the petition is exempt from the H -1 B cap and the numerical limit has been reached. 5 
III. ADDITIONAL ISSUES 
As this basis for denial is dispositive of the Petitioner's eligibility for the benefit sought, we need not 
and will not address at this time any additional issues in the record of proceeding. Nevertheless, we 
will note that there are a number of discrepancies within the filing. For instance: 
• The Petitioner stated: (1) in the Form I-129 and appeal brief that the Beneficiary 
would be employed as a physical therapist; however, (2) in the labor condition 
application the Petitioner claimed that he would be employed as an occupational 
therapist. In response to our notice, the Petitioner stated that the Beneficiary will 
be employed as an occupational therapist. 
5 USCIS announced that the H-lB cap for fiscal year 2016 was reached on April 7, 2015. 
4 
Matter ofC-F-1-H-, Inc. 
• In the letter of support submitted with the petition, the Petitioner stated that the 
Beneficiary's education is equivalent to a United States master's degree in 
physical therapy. However, the National Certification Boards of Occupational 
Therapists letter submitted by the Petitioner indicates that the Beneficiary's 
credentials are comparable to a U.S. degree in occupational therapy. 
• The Petitioner stated in the appeal that "[it] derives no revenue from staffing and 
is solely a research organization." The Petitioner, however, submitted an 
employment agreement between itself and the Beneficiary, stating that the 
Beneficiary acknowledges that the Petitioner "would suffer significant loss of 
profits should Employee fail to complete the full term of service at the Assigned 
Client Facility" and that he would be required to pay $45,000 in liquidated 
damages, which would include the Petitioner's "lost profits." 
• The Petitioner requested on the Form I-129 that the petition be approved from 
February 1, 2015 to January 31, 2018. However, in the letter of support, the 
Petitioner stated that it wished to employ the Beneficiary from February 1, 2015 
and extending no longer than January 31, 2016. 
Thus, we must question the accuracy of the statements and whether the information provided is 
correctly attributed to this particular position and Beneficiary. An inaccurate statement anywhere on 
the Form I-129 or in the evidence submitted in connection with the petition mandates its denial. See 
8 C.P.R.§ 214.2(h)(10)(ii); see also id. § 103.2(b)(l). 
IV. CONCLUSION AND ORDER 
The burden is on the Petitioner to show 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. 
Cite as Matter ofC-F-1-H-, Inc., ID# 15084 (AAO Feb. 18, 2016) 
5