dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 05, 2025 In Re: 36605186 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary 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. § l 10l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to file a petition with U.S. 
Citizenship and Immigration Services (USCIS) 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding the Petitioner did not submit the filing during the required 90-day period. The 
matter is now before us on appeal under 8 C.F.R. § 103.3. 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 novo. 
Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will 
dismiss the appeal. 
I. LAW 
Section 10l(a)(15)(H)(i)(b) provides a nonimmigrant classification for aliens who are coming 
temporarily to the United States to perform services in a specialty occupation. In general, H-lB visas are 
numerically capped by statute. Pursuant to section 214(g)(l)(A) of the Act, the total number of H-lB 
visas issued per fiscal year may not exceed 65,000. The regulation also governs a multistep process to 
first register for lottery selection (8 C.F.R. § 214.2(h)(8)(iii)(A)(J)--{7)), and if selected the method and 
timeframe to file an H-lB petition on behalf of the alien (8 C.F.R. § 214.2(h)(8)(iii)(D)(J)--{3)). 
Specifically related to this case, the regulation at 8 C.F.R. § 214.2(h)(8)(iii)(C) provides that "USCIS will 
notify all petitioners with selected registrations that the petitioner is eligible to file an H-lB cap-subject 
petition on behalf of the beneficiary named in the notice within the filing period indicated on the notice." 
Further, 8 C.F.R. § 214.2(h)(8)(iii)(D)(3) describes the acceptable filing period stating: 
An H-1 B cap-subject petition must be properly filed within the filing period indicated 
on the relevant selection notice. The filing period for filing the H-lB cap-subject 
petition will be at least 90 days. If petitioners do not meet the requirements of this 
paragraph (h)(8)(iii)(D), USCIS may deny or reject the H-1 B cap-subject petition. 
We also note the USCIS website contains information pertinent to this petition and it provides in part: 
Q. How can I make sure that my filing is not rejected at intake for incorrect fees? 
A. At intake, we determine whether the payment you submitted matches the correct 
fees due. If you do not submit the correct fee, we must reject your form, even if you 
have submitted an overpayment. Please see our Filing Fees page for more details. 
If you are submitting one of the following forms, the required fees depend on how you 
answer the form's questions about your status as a nonprofit or small employer. 
Form I-129, Petition for a Nonimmigrant Worker: 
Part 5, Question 15 asks "Do you currently employ a total of 25 or fewer foll-time 
equivalent employees in the United States, including all affiliates or subsidiaries of this 
company/organization?" If you answer "Yes," then you must submit the proper 
payment for a small employer (unless you checked "Yes" in Part 1, Question 6 for 
nonprofits, as described above). 
USCIS Reminds Certain Employment-Based Petitioners to Submit the Correct Required Fees, U.S. 
Citizenship and Immigration Services (Apr. 29, 2024), https://www.uscis.gov/newsroom/alerts/uscis­
reminds-certain-employment-based-petitioners-to-submit -the-correct-required- fees. 
II. ANALYSIS 
In March 2024, the Beneficiary was selected in the H-lB registration process. The resulting 
registration selection notice informed the Petitioner any H-1 B petition filed on the Beneficiary's behalf 
must be properly submitted in between April 1, 2024, and June 30, 2024. The Petitioner submitted 
their initial H-lB petition on June 24, 2024, but USCIS rejected that filing, and the organization 
resubmitted a new petition on July 24, 2024. USCIS again rejected that petition, in that instance 
because the Petitioner did not file it during the required period reflected on the registration selection 
notice. 
In their third effort, the Petitioner filed another H-lB petition on August 26, 2024, including a request 
for nunc pro tune consideration of the filing seeking retroactive approval for the petition and also 
explained the reason for the rejection was an inadvertent error on counsel's part. In response, the 
Director issued a notice of intent to deny the third petition as it was not filed within the period indicated 
on the registration notice, and they subsequently denied the petition for the same reason. Within the 
Director's denial, they stated: 
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The evidence is insufficient to establish that the present petition qualifies for the 
requested nunc pro tune request to consider the present petition filed within the 
applicable filing period as users appropriately rejected the initial and second 
petitions. 
As noted above, the selection notice states that you must file the petition between April 
01, 2024 and June 30, 2024, which is a period of 90 days. 
While users has discretionary power to consider nunc pro tune requests, users is 
not mandated or obligated to approve such a request. A petitioner cannot use this 
remedy to correct their own errors or retroactively change disqualifying circumstances. 
The Director considered whether to exercise discretion as the Petitioner requested but declined to do 
so. We note the final determination of whether the record satisfies the regulation's requirements or 
meets the party's burden of proof lies with users. See Matter of Caron International, 19 r&N Dec. 
791, 795 (eomm'r 1988) (finding that the appropriate entity to determine eligibility is users). While 
users may have discretion to act, that authority alone does not render its decision erroneous simply 
because its choice didn't align with the Petitioner's preferences. So long as the agency's action fits 
within the bounds oflaw and reason, its choice remains just that: a choice, not an error. The Director 
was charged with making a determination in this case. They made that decision, and in doing so, 
provided a sufficiently reasoned consideration to the petition without committing any prejudicial 
errors. On appeal, the Petitioner does not identify a legal error in the Director's decision. 
Finally, within the appeal, the Petitioner raises issues related to the Beneficiary's maintenance of 
status. However, there is no provision in the regulations for an appeal from a denial of a change of 
status and extension of stay request. See 8 e.F.R. §§ 214. l(c)(5), 248.3(g); see also DHS Delegation 
Number 0150.1 (effective March 1, 2003); 8 e.F.R. § 2.1 (2003). We therefore have no jurisdiction 
over that portion of this appeal and consequently will address neither the Director's determination 
regarding the Beneficiary's status, nor the claims made on appeal contesting that determination. 
We will accordingly dismiss the appeal, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
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