dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 18, 2025 In Re: 36698129 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
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. § 1101(a)(15)(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 Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that either the Petitioner or the Beneficiary is exempt from the annual H-lB numerical 
limitation (H-lB cap). The matter is now before us on appeal pursuant to 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 Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
In general, H-lB visas are numerically limited, or "capped," at 65,000 per fiscal year pursuant to 
section 214(g)(l)(A) of the Act, 8 U.S.C.§ 1184(g)(l)(A). The statute and regulations provide for 
exemptions from the cap in limited circumstances, such as for an extension of a beneficiary's current 
stay in H-lB status for up to six years. See, e.g. , section 214(g)(5) of the Act; section 214(1) of the 
Act, 8 U.S.C. § 1184(1); 8 C.F.R. § 214.2(h)(8)(ii)(A). 
The Petitioner filed the instant petition as exempt from the H-lB cap on the basis that the Petitioner 
was requesting an amendment to or an extension of the Beneficiary's current H-lB classification. The 
record shows that the Beneficiary was previously the beneficiary of an approved cap-subject H-lB 
petition filed by a different petitioner. That petition, Receipt Numbed Iwas counted 
against the Fiscal Year (FY) 2023 H-lB cap and approved with consular notification in September 
2022. However, the Beneficiary never entered the United States pursuant to this H-lB approval. The 
record also shows that in April 2023, the Petitioner filed an H-lB petition for the Beneficiary, Receipt 
Numberl Ialso requesting consular notification. The Petitioner filed that H-lB petition 
as exempt from the cap on the basis that the Beneficiary had already been counted against the FY 2023 
cap and was applying for the remaining portion of their six-year period of admission. That H-lB 
petition was approved in April 2023. The Beneficiary was issued an H-lB visa stamp on May 18, 2023, 
pursuant to that approval, and the Beneficiary was admitted to the United States in H-lB status on June 
8, 2023. 
In March of 2024, the Petitioner filed the H-lB petition in the instant matter, requesting to amend the 
Beneficiary's H-lB status and extend the Beneficiary's stay. The Director issued a notice of intent to 
deny (NOID), notifying the Petitioner that the H-lB petition, Receipt Numberl Iin which 
the Beneficiary was counted against the FY 2023 H-lB cap, was revoked with a finding of fraud on May 
8, 2023. The Director notified the Petitioner that, pursuant to section 214(g)(3) of the Act, the 
Beneficiary's H-lB cap number had therefore been lost, and the Beneficiary had no longer been counted 
against the H-lB cap. Following consideration of the Petitioner's response, the Director denied the 
petition on this basis. 
On appeal, the Petitioner repeats its claim, also presented to the Director, that the Beneficiary's H-lB 
status was "revalidated," despite the revocation of the Beneficiary's cap-subject petition, because the 
Beneficiary was issued an H-lB visa on May 18, 2023 and was admitted to the United States on June 
8, 2023, after the revocation of the prior H-lB cap-subject petition on May 8, 2023. The Petitioner 
does not offer legal support for its claim. 
We acknowledge that the Beneficiary's H-lB visa was issued, and the Beneficiary was admitted to 
the United States, after the date of the cap-subject petition's revocation. However, a petition may be 
revoked at any time, including after the expiration of the petition. 8 C.F.R. § 214.2(h)(ll)(i)(B). Even 
if the Beneficiary's H-1 B visa was issued in error, the Petitioner does not offer legal support for the 
claim that USCIS should continue this error by approving an extension of a status that was erroneously 
granted. 
The current extension petition was filed as cap exempt, claiming that the Beneficiary was counted 
against the FY 2023 H-lB cap. The Petitioner was notified that the Beneficiary's FY 2023 cap number 
was lost, and the Beneficiary is no longer considered to have been counted against the FY 2023 H-1 B 
cap. The Petitioner has not provided any other basis upon which the instant petition is exempt from 
the cap. The Petitioner has not demonstrated that the instant petition was counted against the FY 2024 
cap, the fiscal year in which the petition was filed, or eligibility for other exemption from the cap. 
Accordingly, the appeal will be dismissed for the above stated reasons. In visa petition proceedings, 
it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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