dismissed H-1B Case: Software Development

(b)(6)
DATE: MAR 2 0 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. De11artment of Homeland Security 
U.S. Citiz.enship and Immigration Service� 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .• MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
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. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or. a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not tile a motion directly with the AAO. 
, nberg 
Q
ef, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director (hereinafter "director") revoked the previously approved 
nonimmigrant visa petition, and the matter is now before the Administrative Appeals Office on 
appeal. The appeal will be dismissed. The petition's approval will remain revoked. 
On the Petition for a Nonimmigrant Worker (Form 1-129), the petitioner describes itself as a 
2000-employee "Financial services provider" established in In order to employ the 
beneficiary in what it designates as a "Front End Development Specialist" position, the petitioner 
seeks to classify her as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The director revoked approval of the petition in accordance with the 
provisions of 8 C.F.R. § 214.2(h)(ll)(iii)(A) after a subsequent review of the record. 
After issuance of a Notice of Intent to Revoke (NOIR) and upon review of the petitioner's 
submissions in response to the NOIR, the director revoked approval of the petition on July 11, 2014. 
The director determined that the petitioner had not overcome the grounds of revocation in that the 
petitioner had not submitted evidence that the beneficiary was eligible for an exception to the 
numerical limitation for the 2014 fiscal year based on a master's or higher degree from a United 
States institution of higher education. 
The record of proceeding before this office contains: (1) the Form 1-129 and supporting 
documentation; (2) the director's initial approval of the petition; (3) the director's NOIR; ( 4) the 
petitioner's response to the NOIR; (5) the director's notice of revocation (NOR); and (6) the Form 
I-290B, Notice of Appeal or Motion, the appeal brief, and previously submitted documentation. We 
reviewed the record in its entirety before issuing our decision.1 
I. GROUNDS FOR REVOCATION 
We turn first to the basis for the director's revocation, and whether this basis provided the director with 
sufficient grounds for revoking the H-1B petition on notice under the language at 8 C.F.R. 
§ 214.2(h)(11 )(iii)( A). 
The regulation at 8 C.F.R. § 214.2(h)(ll)(iii), which governs revocations that must be preceded by 
notice, states: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving 
training as specified in the petition; or 
1 We conduct appellate review on a de novo basis. See Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). 
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(2) The statement of facts contained in the petition or on the application for a 
temporary labor certification was not true and correct, inaccurate, 
fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act 
or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days 
of receipt of the notice. The director shall consider all relevant evidence presented in 
deciding whether to revoke the petition in whole or in part. If the petition is revoked 
in part, the remainder of the petition shall remain approved and a revised approval 
notice shall be sent to the petitioner with the revocation notice. 
We find that the content of the NOIR comported with the regulatory notice requirements, as it 
provided a detailed statement that conveyed grounds for revocation encompassed by the regulation 
at 8 C.F.R. § 214.2 (h)(ll)(iii)(A), and allotted the petitioner the required time for the submission of 
evidence in rebuttal that is specified in the regulation at 8 C.F.R. § 214. 2(h)(ll)(iii)(B). As will be 
discussed below, we further find that the director's decision to revoke approval of the petition 
accords with the evidence or lack of evidence in the record of proceeding, and that neither the 
response to the NOIR nor the submissions on appeal overcome the grounds for revocation indicated 
in the NOR. Accordingly, we shall not disturb the director's decision to revoke approval of the 
petition. 
II. ELIGIBILTY BASED ON THE U.S. 
MASTER'S DEGREE OR HIGHER CAP 
The primary issue before this office is whether the petitioner provided sufficient evidence to 
establish that the beneficiary qualifies for an exemption from the Fiscal Year 2014 (FY14) H-1B 
cap pursuant to section 214(g)(5)(C) of the Act, 8 U.S.C. § 1184(g)(5)(C). 
In general, H-1B visas are numerically capped by statute. Pursuant to section 214(g)(1)(A) of the Act, 
the total number of H-1B visas issued per fiscal year may not exceed 65,000 (hereinafter referred to as 
the "H-1B Cap"). In addition, the maximum number of H-1B visas that may be issued per fiscal year 
pursuant to the H-1B cap exemption at section 214(g)(5)(C) of the Act may not exceed 20,000 
(hereinafter referred to as the "U.S. Master's Degree or Higher Cap"). The petition was filed for an 
employment period to commence October 1, 2013. As FY14 extends from October 1, 2013 through 
September 30, 2014, the instant petition is subject to the FY14 H-1B Cap, unless exempt. 
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On April 5, 2013, U.S. Citizenship and Immigration Services (USCIS) issued a notice that it had 
received sufficient numbers of H-1B petitions to reach both the H-1B Cap and the U.S. Master's 
Degree or Higher Cap for FY14 as of that date. Therefore, April 5, 2013 is the FY14 "final receipt 
date," as described at 8 C.F.R. § 214. 2(h)(8)(ii)(B), for acceptance of both cap subject and limited 
cap exempt H-1B petitions. The petitioner filed the instant visa petition requesting a U.S. Master's 
Degree or Higher Cap exemption on April 1, 2013, four days prior to the final receipt date. 
A. The Law 
Section 214(g) of the Act provides in pertinent part the following: 
(1) The total number of aliens who may be issued visas or otherwise provided 
nonimmigrant status during any fiscal year (beginning with fiscal year 1992)-
(A) under section 10l(a)(15)(H)(i)(b ), may not exceed-
* * * 
(vii) 65,000 in each succeeding fiscal year .... 
In general, section 214(g)(5) of the Act provides that: 
The numerical limitations contained in paragraph (1)(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
101(a)(15)(H)(i)(b) who-
(A) is employed (or has received an offer of employment) at an institution of higher 
education (as defined in section 101(a) of the Higher Education Act of 1965 
(20 U.S.C. 1001(a))), 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 
(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. lOOl(a)), until the number of aliens who are exempted from such 
numerical limitation during such year exceeds 20,000. 
Pursuant to section 10l(a) of the Higher Education Act of 1965, the term "institution of higher 
education" is defined as follows: 
[A ]n educational institution in any State that-
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(1) admits as regular students only persons having a certificate of graduation from a 
school providing secondary education, or the recognized equivalent of such a 
certificate; or persons who meet the requirements of section 1091( d) of this title; 
(2) is legally authorized within such State to provide a program of education beyond 
secondary education; 
(3) provides an educational program for which the institution awards a bachelor's 
degree or provides not less than a 2-year program that is acceptable for full credit 
toward such a degree, or awards a degree that is acceptable for admission to a 
graduate or professional degree program, subject to review and approval by the 
Secretary; 
( 4) is a public or other nonprofit institution; and 
(5) is accredited by a nationally recognized accrediting agency or association, or if 
not so accredited, is an institution that has been granted preaccreditation status by 
such an agency or association that has been recognized by the Secretary for the 
granting of preaccreditation status, and the Secretary has determined that there is 
satisfactory assurance that the institution will meet the accreditation standards of 
such an agency or association within a reasonable time. 
B. Facts and Procedural History 
The petitioner filed the Form I-129 on April l, 2013 requesting an employment start date of October 
1, 2013. The Form I-129 H-lB Data Collection and Filing Fee Supplement (hereinafter, "H-1B 
Supplement"), at Part C, Numerical Limitation Information, reads as follows: 
1. Specify how this petition should be counted against the H-1B numerical 
limitation (a.k.a. the H-1B "Cap"). (Check one): 
0 a. CAP H-1B Bachelor's Degree 
0 b. CAP H-1B U.S. Master's Degree or Higher 
0 c. CAP H-1Bl Chile/Singapore 
0 d. CAP Exempt 
As noted above, by requesting an employment start date of October 1, 2013, the instant petition is 
subject to the FY 2014 limitation on H-lB beneficiaries. The petitioner checked box b at Part C, 
question 1, indicating that the beneficiary has a U.S. master's degree or higher, and thereby claimed 
an exemption from the numerical limitation contained in section 214(g)(l)(A)(vii) of the Act 
pursuant to section 214(g)(5)(C) of the Act. 
The numerical limitation for both the regular and the "advanced degree" cap exemption was reached 
on April 5, 2013. See "USCIS Reaches Fiscal Year 2014 H-1B Cap," available on the USCIS 
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Internet site at http://www .uscis.gov/news/alerts/uscis-reaches-fy-2014-h-lb-ca p (last visited Mar. 
11, 2015). A subsequent USCIS press release issued on April 8, 2013 stated the following: 
For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) 
has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the 
first week of the filing period. USCIS has also received more than 20,000 H-1B 
petitions filed on behalf of persons exempt from the cap under the advanced degree 
exemption. 
USCIS received approximately 124,000 H-1B petitiOns during the filing period, 
including petitions filed for the advanced degree exemption. On April 7, 2013, 
users used a computer-generated random selection process (commonly known as a 
"lottery") to select a sufficient number of petitions needed to meet the caps of 65,000 
for the general category and 20,000 under the advanced degree exemption limit. 
* * * 
The agency conducted the selection process for advanced degree exemption petitions 
first. All advanced degree petitions not selected were part of the random selection 
process for the 65,000 limit. 
See http://www .uscis.gov/news/uscis-reaches-fy-2014-h-1b-cap (last visited Mar. 11, 2015). 
Under Part C, question 2, the petitioner indicated that the beneficiary was awarded a "Master of 
Fine Arts" on December 18, 2010, from the located in 
California. The petitioner further claimed in its support letter, dated March 8, 2013, that the 
beneficiary "was awarded a Master of Fine Arts degree in Web Design & New Media from the 
in , California." The petitioner also submitted copies of 
the beneficiary's transcript for her master's degree as well as a copy of her diploma granting her a 
Master of Fine Arts in Web Design & New Media. 
The director approved the petition on May 2, 2013. 
Upon further review of the record and the institution issuing the master's degree, the director 
notified the petitioner in the NOIR that the , is a for-profit, private 
corporation and therefore does not qualify as an institution of higher education as set out in section 
101(a) of the Higher Education Act of 1965. 
In response to the NOIR, the petitioner asserted that the beneficiary has already been counted 
toward the FY14 H-1B cap and actually qualifies under the bachelor's cap. The petitioner 
contended that the beneficiary "possesses a bachelor's degree from a foreign university that has been 
evaluated to be the equivalent to U.S. Bachelor of Science in Computer Information Systems." The 
petitioner provided an academic equivalency evaluation, dated May 14, 2014, stating that the 
beneficiary's foreign degree is equivalent to a bachelor's degree in computer information systems. 
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The petitioner contended further that the approval of the instant petition did not constitute "gross 
error" for the following reasons: 
• [The beneficiary] should not be disqualified as an H-1B visa holder because the 
master's degree conferring institution appears, to any outsider reviewing the 
institution, to qualify as an institution of higher education. 
• (The petitioner] filed the petition in good faith. 
• [The petitioner] and [the beneficiary] should not be punished as they are not at 
fault. 
• It is impossible to ascertain whether the approved petition was selected in the 
H-1B lottery under [section] 214(g)(5)(C) (master's cap) or whether it was 
selected in the H-1B lottery under [section] 214(g)(5)(A) (bachelor's cap). 
• Application of 20 U.S.C. § lOOl(a) does not appear to be uniformly applied and 
targeting [the petitioner] and [the beneficiary] raises disparate treatment and due 
process issues. 
Upon review of the petitioner's claims and underlying assertions, the director found that the 
petitioner had not submitted evidence establishing that the beneficiary is eligible for the U.S. 
Master's Degree or Higher Cap and thus had not overcome the grounds for revocation. 
On appeal, the petitioner asserts that it has met its burden establishing that the beneficiary qualifies 
for an H-1B visa. The petitioner contends that USCIS seeks to revoke approval of the petition 
"based on its own procedural error as the beneficiary was placed for processing in the master's cap," 
but that the beneficiary is also in possession of a bachelor's degree related to the proposed 
occupation and thus she meets the Congressionally imposed criteria for the H-1B visa category. 
The petitioner repeats its assertions and arguments on why the approval of the petition does not 
constitute gross error and is not a violation of section 10l(a)(15)(H) of the Act or paragraph (h) of 
this section. 
C. Analysis 
The petitioner's assertions regarding its good faith in filing the petition and what it perceives as 
punishment are equitable claims and thus outside the jurisdiction of this office. This office, like the 
Board of Immigration Appeals, is without authority to apply the doctrine of equitable estoppel so as 
to preclude a component part of USCIS from undertaking a lawful course of action that it is 
empowered to pursue by statute or regulation. See Matter of Hernandez-Puente, 20 I&N Dec. 335, 
338 (BIA 1991). Estoppel is an equitable form of relief that is available only through the courts. 
The jurisdiction of this office is limited to that authority specifically granted to it by the Secretary of 
the U.S. Department of Homeland Security. See DHS Delegation Number 0150.1 (effective March 
1, 2003); see also 8 C.P.R. § 2.1 (2004). The jurisdiction of this office is limited to those matters 
described at 8 C.P.R. § 103.1(t)(3)(E)(iii) (as in effect on February 28, 2003). Accordingly, we 
have no authority to address the petitioner's equitable claim. Similarly, we have no authority to 
entertain constitutional due process challenges to a lawful USCIS action. Cf Matter of 
Salazar-Regino, 23 I&N Dec. 223, 231 (BIA 2002) (collecting cases). 
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Next, we find that an Internet search on established college information websites reveals that the 
is a four-year for profit institution. See e.g. 
. - -
(last 
visited Mar. 11, 2015). The record does not contain evidence that the is 
a public or other nonprofit institution. Accordingly, absent evidence to the contrary, the petitioner 
should have checked box "a" at Part C, section 1 of the H-lB Supplement, indicating that the 
beneficiary is subject to the numerical limitation contained in section 214(g)(1)(A) of the Act. As 
the does not qualify under the cited definition, we are without authority 
to determine that the _ renders the beneficiary eligible for an exception to 
the FY14 H-1B Cap based on a master's or higher degree from a United States institution of higher 
education even if the petitioner and the beneficiary were unaware of the school's for-profit status. 
Finally, we will address the petitioner's claim that it is impossible to ascertain whether the approved 
petition was selected in the H-1B lottery for consideration as a master's cap petition or whether it 
was selected in the H-1B lottery for consideration as a bachelor's cap petition. Upon review, the 
petitioner filed the instant petition claiming the U.S. Master's Degree or Higher Cap exemption and 
USCIS records indicate that the instant petition was receipted by USCIS as a petition exempt from 
the numerical limitation based upon that claim. Therefore, we find that the evidence in the record 
does not support a finding that the instant petition was receipted by USCIS as a regular H-1B filing 
and assigned one of the remaining 65,000 visa numbers available in the lottery. As the beneficiary 
was ineligible for the exemption claimed, the director's review and determination of that fact 
requires the revocation of approval of the petition. 
We now turn to the petitioner's contention that the instant visa petition was approvable pursuant to 
the general H-1B Cap. The Code of Federal Regulations at 8 C.F.R. § 214.2(h)(8)(ii)(B) reads in 
pertinent part as follows: 
When calculating the numerical limitations or the number of exemptions under 
section 214(g)(5)(C) of the Act for a given fiscal year, USCIS will make numbers 
available to petitions in the order in which the petitions are filed . . . . Petitions 
subject to a numerical limitation not randomly selected or that were received after 
the final receipt date will be rejected. Petitions filed on behalf of aliens otherwise 
eligible for the exemption under section 214(g)(5)(C) of the Act not randomly 
selected or that were received after the final receipt date will be rejected if the 
numerical limitation under 214(g)(1) of the Act has been reached for that fiscal year. 
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 refunded .. .. 
The actual determination date for the beneficiary's ineligibility for this claimed U.S. Master's 
Degree or Higher Cap exemption is the date the director revoked the approval of the instant petition, 
i.e., July 11, 2014. Again, the petitioner filed the instant petition claiming the U.S. Master's Degree 
or Higher Cap exemption and USCIS records indicate that the instant petition was receipted by 
USCIS as a petition exempt from the numerical limitation based upon that claim. As the petition 
was receipted as a FY14 U.S. Master's Degree or Higher Cap filing and as a determination that the 
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Page 9 
beneficiary was ineligible for that claimed exemption was made after April 5, 2013, the petition 
must be denied as there are no remaining FY14 H-lB visa numbers available to be assigned to the 
beneficiary. 
The approval of a petition that is not eligible for the U.S. Master's Degree or Higher Cap exemption 
is gross error and requires revocation? As determined above, the director properly gave notice of 
the error, provided the petitioner the opportunity to provide evidence to overcome the error, and 
when such evidence was not forthcoming, revoked approval of the petition. As a general FY14 H­
lB cap number is no longer available to be assigned to the beneficiary, the approval of the petition 
must remain revoked. 
Ill. CONCLUSION AND ORDER 
Based upon a complete review of the appeal and the record of proceeding, we find that the petitioner 
has failed to overcome the revocation grounds specified in the NOIR and the subsequent revocation 
decision. The petitioner has not established eligibility for the petition to be counted against the U.S. 
Master's Degree or Higher Cap. Accordingly, the appeal is dismissed. The approval of the petition 
remains revoked. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. The approval of the petition remains revoked. 
2 The petitioner's assertion that USCIS seeks to revoke approval of the petition "based on its own procedural 
error as the beneficiary was placed for processing in the master's cap," is without merit. The petitioner in this 
matter affirmatively requested that the petition be considered under the master's cap and the petition was 
adjudicated under the master's cap exemption. When the director discovered that the beneficiary's degree did 
not meet the eligibility standards for a master's cap exemption, the director properly revoked approval of the 
petition on notice.