dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 04, 2023 In Re: 28510836 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(B), 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 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 Director of the Vermont Service Center denied the petition, concluding the record did not establish 
that the Petitioner filed more than one H-lB petition subject to the numerical limitations at section 
214(g)(l)(A) of the Act (H-lB cap) on behalf of the same noncitizen in the same fiscal year. The 
matter is now before us on appeal. 8 C.F.R. § 103 .3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. PROCEDURAL HISTORY 
The Petitioner filed two H-lB petitions subject to the H-lB cap on behalf of the Beneficiary within 
two weeks of one another on June 14, 2022 and June 27, 2022. On July 27, 2022 and July 28, 2022 
the Director issued notices of intent to deny (NOID) for each petition. The Petitioner claims that it 
submitted a timely response to the Director's NOIDs on August 8, 2022. 1 The Director denied both 
petitions, including the one for which the Petitioner filed this appeal, on November 16, 2022. 2 The 
1 We will exercise our favorable discretion and consider the evidence the Petitioner submits for the first time on appeal. 
Nevertheless , we will dismiss the appeal for the reasons we discuss in our decision. 
2 The Petitioner states on appeal that they intended to file a motion to reopen in connection with the Director's decision to 
deny the petition filed on June 14, 2022. The Petitioner indicated that they wished to withdraw the petition. USCIS granted 
the motion and the Director acknowledg ed the withdrawal of the June 14, 2022 petition on May 22, 2023. 
Director concluded the Petitioner submitted multiple H-lB cap subject pet1t10ns for the same 
beneficiary in the same fiscal year and denied the petition pursuant to 8 C.F.R. § 214.2(h)(2)(i)(G). 
On appeal, the Petitioner reiterates its previous statements describing the facts and circumstances that 
resulted in filing of multiple cap subject H-1 B petitions for the same Beneficiary in the same fiscal 
year. 
II. LEGAL FRAMEWORK 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) prohibits multiple H-lB petitions from being filed in 
the same fiscal year for the same beneficiary by an employer or related entities. The regulation at 8 
C.F.R. § 214.2(h)(2)(i)(G) states: 
Multiple H-JB petitions. An employer may not file, in the same fiscal year, more than 
one H-lB petition on behalf of the same alien if the alien is subject to the numerical 
limitations of section 214(g)(l)(A) of the Act or is exempt from those limitations under 
section 214(g)(5)(C) of the Act. If an H- lB petition is denied, on a basis other than 
fraud or misrepresentation, the employer may file a subsequent H-lB petition on behalf 
of the same alien in the same fiscal year, provided that the numerical limitation has not 
been reached or if the filing qualifies as exempt from the numerical limitation. 
Otherwise, filing more than one H-lB petition by an employer on behalf of the same 
alien in the same fiscal year will result in the denial or revocation of all such petitions. 
If USCIS believes that related entities (such as a parent company, subsidiary, or 
affiliate) may not have a legitimate business need to file more than one H-1 B petition 
on behalf of the same alien subject to the numerical limitations of section 214(g)(l)(A) 
of the Act or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act, 
USCIS may issue a request for additional evidence or notice of intent to deny, or notice 
of intent to revoke each petition. If any of the related entities fail to demonstrate a 
legitimate business need to file an H-1 B petition on behalf of the same alien, all 
petitions filed on that alien's behalf by the related entities will be denied or revoked. 
The regulation precludes a favorable action of discretion if a petitioner files multiple H-lB cap subject 
petitions for the same beneficiary. And, in the case of multiple petitions filed by related entities for 
the same beneficiary in the same fiscal year, filing multiple H-lB cap subject petitions will result in 
the denial or revocation of all petitions unless a petitioner demonstrates a legitimate business need. 
III. ANALYSIS 
The Petitioner's petition must 
be denied. The Petitioner filed two H-lB cap subject petitions for the 
same beneficiary in the same fiscal year. So the regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) requires 
denial or revocation of all petitions filed by the Petitioner for the Beneficiary. 
The Petitioner requested a favorable act of discretion because it filed duplicate cap subject H-lB 
petitions for the same Beneficiary in the same fiscal year in anticipation of rejection its earlier filed 
petition accompanied by an unsigned but certified ETA 9035E, Labor Condition Application. The 
explanation that accompanied the later-filed petition for which this appeal is filed and evidence the 
Petitioner submitted in the appeal itself acknowledged that it submitted two H-lB cap-subject petitions 
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on behalf of the Beneficiary in the same fiscal year. The Petitioner states that it could not withdraw 
the earlier filed petition because the petition had not been receipted by USCIS when it filed the petition 
for which this appeal is filed. The Petitioner explains that it made numerous efforts to notify USCIS 
of the reasons why it submitted duplicate cap-subject petitions in the same fiscal year for the same 
beneficiary. The Petitioner also stated it had subsequently withdrawn its earlier filed petition and 
requested that the later filed petition be adjudicated in the ordinary course and ultimately approved. 
But the Petitioner's withdrawal of the other petition it filed for the Beneficiary, even if the withdrawal 
would have accompanied the filing of the petition for which this appeal was filed, would not ameliorate 
the matter before us. The regulatory prohibition applies to all H-lB cap-subject petitions filed on 
behalf of the same beneficiary by a petitioner in the same fiscal year irrespective of the reason. See 8 
C.F.R. § 214.2(h)(2)(i)(G). There is no authority in the statute, regulations, or policy which permits 
approval of the H-lB cap subject petition under this duplicate filing scenario. So, approval of the 
petition is prohibited pursuant to 8 C.F.R. § 214.2(h)(2)(i)(G) and we must dismiss the appeal. 
IV. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the benefit sought. 
See section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden here. The appeal 
must be dismissed. 
ORDER: The appeal is dismissed. 
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