dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 21164470 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 28, 2022 
The Petitioner seeks to extend the Beneficiary's temporary employment 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)(iXb). 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 Vermont Service Center Director denied the Form 1-129, Petition for a 
Nonimmigrant Worker . The matter is now before us on appeal. The Petitioner bears the burden of 
proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the Act; Matter 
ofChawathe, 25 I&N Dec. 369,375 (AAO 2010). We review the questions in this matter de nova. 
Matter of Christo 's Inc ., 26 l&N Dec. 537 , 537 n.2 (AAO 2015). Upon de nova review, we will 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b),provides a nonimmigrant 
classification for foreign nationals who are coming temporarily to the United States to perform 
services in a specialty occupation. In general, H-1 B visas are numerically capped by statute. Pursuant 
to section 214(g)( 1 )(A) of the Act, the total number of H-1 B visas issued per fiscal year may not 
exceed 65,000. Generally, H-lB petition beneficiaries are allocated a visa number and a cap number 
upon the petition's approval. See section 214(g)(3) of the Act; 8 C.F.R. § 214.2(h)(8)(ii)(A)-(B). 
Section 214(g)(7) of the Act states: 
Any alien who has already been counted, within the 6 years prior to the approval 
of a petition described in subsection ( c) of this section, toward the numerical 
limitations of paragraph (1 )(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. 
In addition, section 214(g)(3) of the Act reads as follows: 
Aliens who are subject to the numerical limitations of paragraph ( 1) shall be issued 
visas (or otherwise provided non immigrant status) in the order in which petitions 
are filed for such visas or status. If an alien who was issued a visa or otherwise 
provided nonimmigrant status and counted against the numerical limitations of 
paragraph (1) is found to have been issued such visa or otherwise provided such 
status by fraud or willfully misrepresenting a material fact and such visa or 
nonimmigrant status is revoked, then one number shall be restored to the total 
number of aliens who may be issued visas or otherwise provided such status under 
the numerical limitations of paragraph (1) in the fiscal year in which the petition is 
revoked, regardless of the fiscal year in which the petition was approved. 
II. ANALYSIS 
We begin establishing a timeline of events: 
July 29, 2011 H-1 B petition # 1 was filed for the Beneficiary 
August 23, 2011 H-1 B petition # 1 was approved 
November 15, 2011 H-1 B petition #2 was filed for the Beneficiary 
November 21, 2011 H-1 B petition #2 was approved 
January 6, 2012 Beneficiary entered United States using H-1 B petition #2 approval 
October 19, 2012 Approval for H-1 B petition #2 was revoked 
October 13, 2017 Relating directly to H-1 B petition# 1, an individual pled guilty to criminal 
charges for his role in an immigration fraud scheme 
October 24, 2018 Approval for H-1 B petition# l revoked for fraud 
This Petitioner filed the H-1 B petition we have before us on appeal as being 
July 6, 2020 exempt from the H-lB cap because they were requesting to extend the 
Beneficiary's current H-1 B classification and because he had previously been 
counted against the cap 
October 5, 2020 Director issued a notice of intent to deny (NOID) on this H-1 B petition 
December 29, 2020 Petitioner responded to the NOID 
March 25. 2021 Director denied this H-1 B oetition 
The overarching question on appeal is whether the Petitioner has demonstrated that the employer that 
filed petition #2, filed that petition as being subject to the H-1 B cap. That is the ultimate question 
because petition# 1 was determined to involve fraud and that cap number was returned to the pool of 
available cap numbers for that fiscal year. Section 2 l 4(g)(3 ). 
The Director's NOID discussed the fraud involved with petition #1 and noted that approvals for cap 
petitions filed by that company had been revoked for fraud. The Director also informed the Petitioner 
that they had revoked the approved H-1 B petition through which the Beneficiary previously attained 
his cap number, which resulted in the Beneficiary no longer being considered cap exempt based on 
petition# 1. The Director sought material from the Petitioner to establish that their petition was not 
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subject to the H-1 B numerical cap limitations, and if they were unable to produce such evidence that 
this petition before us would be denied. 
In response, the Petitioner submitted various arguments and evidence. Relating to petition # 1, the 
Petitioner provided a statement from the Beneficiary as well as a Form I-797B, Notice of Action 
relating to petition #2. After considering the Petitioner's response, the Director dete1mined that the 
material was insufficient and denied this petition because: (1) the organization did not establish that 
the Beneficiary was exempt from the H-lB numerical limitations; and (2) the agency had received a 
sufficient number of petitions needed to reach the congressionally mandated H-1 B visa regular cap 
and the 20,000 H-lB visa U.S. advanced degree exemption, known as the master's cap, for fiscal year 
2021. In making that determination, the Director's primary basis was because agency systems and 
records reflected that petition #2 was filed indicating that it was cap exempt based on the cap number 
conveyed from petition# 1. And since petition# 1 was revoked for fraud it could no longer be relied 
upon to convey cap-exempt status. This meant that for this petition to be approvab le, an H-1 B petition 
different from petition #1 must have been filed as being subject to the H-lB cap, then approved. Any 
such petition must have been filed and approved before the Petitioner filed this petition. 
On appeal, the Petitioner asserts that because U.S. Citizenship and Immigration Services (USCIS) 
received and it approved petition #2 before the cap season closed, this meant petition #2 was subject 
to the H-lB cap for the corresponding fiscal year. The record also contains statements from the 
Beneficiary expressing his belief that based on the timing, petition #2 was counted against the H-1 B 
cap. However, simply because an employer files anH-lBpetition and that petition is approved before 
USCIS announces the close of cap season, this does not necessarily mean that such a petition was 
automatically cap-subject. This is because cap-exempt petitions may also be filed and approved while 
a cap season is open. The determining factor of whether a petition is filed as being subject to, or 
exempt from, the H-lB cap is the manner in which an employer files the Form I-129 and the 
accompanying H Classification Supplement to Form I-129. It is this supplement in which a petitioner 
specifies under Section 3, if the petition is filed as cap subject or cap exempt, and if exempt the reasons 
why. 
Additionally, in response to the NOID and on appeal, the Petitioner further claims petition #2 was cap 
subject and in both instances only offered the Form I-797B notice as supporting evidence. This notice 
contains high-level and biographic information from petition #2, but it lacks detailed information from 
the H Classification Supplement to Forml-129 where a petitioner specifically designates if the petition 
is filed as cap subject or cap exempt, and if exempt the reasons why. The Form I-797B is therefore 
insufficient evidence to establish that petition #2 was filed by that employer as cap subject, as this 
Petitioner claims. The record lacks additional information relating to petition #2, such as 
correspondence from the employer that filed petition #2 accompanied by a copy of the petition that 
employer filed on the Beneficiary's behalf that preponderantly shows whether that petition was filed 
as cap subject or cap exempt. Based on the current record, the Petitioner has not presented arguments 
or evidence that overcome the Director's determination that petition #2 was filed as a cap-exempt 
petition. 
Because of the Petitioner's failure to demonstrate petition #2 was filed as being subject to the H-1 B 
cap, the following appellate claims are not persuasive and fall short of meeting its burden: (1) USCIS 
was not authorized to count the first H-lB petition under the cap; (2) neither this Petitioner nor the 
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Beneficiary had any knowledge of or involvement in any fraud or misrepresentation; (3) USCIS erred 
when it allowed petition #2 as a cap-exempt submission; and (4) the presence of positive factors and 
absence of adverse factors relating to the Beneficiary or this Petitioner should factor into the decision. 
Finally, the Petitioner claims that the Director considered derogatory information in the petition denial 
but didn't give them sufficient notice of that information in violation of 8 C.F.R. § 103 .2(b )(16)(i). 
Even if we agreed with the Petitioner on this issue-which we are not conceding-the Petitioner is 
now in possession of allofthe adverse information and has still failed to sufficiently rebut or overcome 
that adverse information within this appeal. In other words, even if we agreed with the Petitioner, 
after being afforded the opportunity they still have not established the Director was incorrect. It would 
therefore serve no purpose for us to remand the matter to the Director for the Petitioner to continue to 
be unable to present sufficient evidence to meet its burden within those proceedings. This would not 
be a proper utilization of agency resources, and it would serve no purpose. 
Ultimately, the Petitioner has not corroborated its claims that petition #2 was filed as cap-subject, and 
in tum, it has not demonstrated that we should decide in favor of the prospect that the Beneficiary was 
exempt as it relates to this petition. 
ORDER: The appeal is dismissed. 
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