dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 16914363 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 22, 2021 
The Petitioner, a software development and information technology consulting company, seeks to 
temporarily employ the Beneficiary as a "software engineer" under the H-1B 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-1B 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 California Service Center approved the petition but denied the request to change the 
Beneficiary's status from F-1 to H-1B, finding that he had failed to properly maintain his F-1 
non immigrant status. The matter is now before us on appeal. The appeal will be rejected. 
The Form 1-129 consists of separate benefit requests.1 As it pertains to the matter at hand, the two benefit 
requests are: (1) the petition to classify the employment offer as appropriate for the H-1B category (the 
basis for classification); and (2) an application for the procedural benefit relevant to the Beneficiary's 
1 These functions previously required two to three separate filings depending upon whether a change of status was being 
requested: one by the petitioner (Form l-129H) and the others by the beneficiary (Forms 1-506 and 1-539). For example, 
the regulations on January 1, 1991 provided that a petitioner "shall file a petition in duplic ate on Form I-129H with the 
service center which has jurisdiction over l-129H petitions in the area where the alien will perform services or receive 
training or as further prescribed in this section." 8 C.F.R. § 214.2(h)(2)(i)(A) (1991). Further, the 1991 regulations required 
applications for a change of status or visa classification to be submitted by the nonimmigrant alien on Form 1-506, 
Applicant for Change of Nonimmigrant Status, filed with the district director having jurisdiction over the place of 
employment if changing to H or L status. 8 C.F.R. § 248.3(a) and (b) (1991). In addition , the 1991 regulations provided 
that " [a]n alien . .. shall apply for an extension of stay on Form 1-539 .... [E]ach alien seeking an extension of stay 
generally must execute and submit a separate application for extension of stay to the district office having jurisdiction over 
the alien's place of temporary residence in the United States." 8 C.F.R. § 214.l(c)(l) (1991). In implementing the 
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, these functions were combined into one form (Form 1-129) 
to process the separate requests more efficiently . See 56 Fed. Reg. 61111 (Dec. 2, 1991); 56 Fed. Reg. 61201, 61204 
(Dec. 2, 1991). 
authorized stay in the United States (a beneficiary's change of status to the H-1B nonimmigrant status 
and an extension of stay).2 
The regulation at 8 C.F.R. § 248.3 states, in pertinent part: 
(a) Requests by petitioners. A petitioner must submit a request for a change of status 
to ... H-1B ... nonimmigrant. 
(g) Denial of application. When the application is denied, the applicant shall be 
notified of the decision and the reasons for the denial. There is no appeal from the 
denial of the application under this chapter. 
The regulations do not provide for an appeal from a denial of a change of status. Moreover, the authority 
to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland 
Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, 
Pub. L. 107-296. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. 
§ 2.1 (2003). The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 
§ 103.1(f)(3)(iii) (as in effect on Feb. 28, 2003).3 Appeals from denials of requests for change of status 
are not listed as matters over which the AAO has jurisdiction, and the appeal must therefore be rejected.4 
ORDER: The appeal is rejected. 
2 See the Form 1-129 instructions found at: https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf. Page 
five of the instructions lists the different uses of the Form 1-129 including the one at issue which is a request to "[c]hange 
the status and extend the stay of beneficiaries who are now in the United States in another status." 
3 There is one exception. Petitions for approval of schools under 8 C.F.R. § 214.3 are now the responsibility of U.S. 
Immigration and Customs Enforcement and fall outside the jurisdiction of USCIS. 
4 As noted by the Director, the Petitioner could have filed a motion to reopen and/or reconsider. 
2