dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 21, 2024 In Re: 94301 
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 10l(a)(l5)(H)(i)(b), 
8 U.S.C. § 1101(a)(15)(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 California Service Center Director denied the petition concluding, in part, that the Petitioner did 
not establish the Beneficiary qualifies for an exemption from the H-lB numerical cap. The matter is 
now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (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. DISCUSSION 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations. See section 101(a)(15)(H)(i)(b) of the Act. 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. See, e.g., section 214(g)(5) of the Act, 8 U .S.C. § 1184(g)(5); 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 a cap-subject H-lB petition on behalf of the Beneficiary subject to the fiscal year 
(FY) 2009 cap, and it was approved. See Iapproved October 1, 2009 to September 
28, 2012. Since the Beneficiary was outside the United States, the Petitioner requested that USCIS 
notify a U.S . consulate of the petition's approval so that the Beneficiary could obtain an H-lB visa 
and seek admission to the United States. However, the Beneficiary never sought H-lB admission, 1 
and in November 2010 that H-lB petition's approval was revoked. 2 
The Petitioner filed the instant petition on behalf of the Beneficiary on September 28, 2012, and it 
requested a validity period spanning September 29, 2012 to September 28, 2015. 3 The Director 
concluded, in part, that because the prior petition's approval had been revoked, the FY 2009 cap 
number had been lost, thereby rendering the Beneficiary subject to the FY 2012 cap. And since there 
were no more FY 2012 cap slots available when this petition was filed, it could not be approved. 
The Petitioner argues on appeal that the Beneficiary is exempt from the FY 2012 cap because she was 
counted against the FY 2009 cap by virtue of approval. We disagree. 
The Beneficiary was not counted against the FY 2009 cap for two reasons. First, she has never held 
H-1 B status. A beneficiary is only counted against the cap when they are issued an H-1 B visa or 
otherwise granted H-lB status and, despite _______ petition approval, the Beneficiary 
never utilized that petition's approval to obtain H-lB status. Consequently, she was never counted 
against the FY 2009 cap based on that approval. Second, and as we noted above, that petition's 
approval was ultimately revoked. The Beneficiary is subject to the FY 2012 cap for both reasons. 
And since that cap was exhausted before this petition was filed, and the Petitioner identified no basis 
for cap extension beyond than the one we just found unpersuasive, the Director properly denied it. 
This issue alone precludes the petition's approval, and consequently we will not address any of the 
Director's remaining findings. See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like 
courts, federal agencies are not generally required to make findings and decisions unnecessary to the 
results they reach); see also Matter ofD-L-S-, 28 I&N Dec. 568, 576-77 n.10 (BIA 2022) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). 
II. CONCLUSION 
The Petitioner has not demonstrated eligibility for exemption from the FY 2012 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. 
1 Instead ofobtaining the H-1 B visa, the Beneficiary opted to instead utilize a previously issued B-2 visa to enter the United 
States. She has never held H-1 B status. 
2 See also Next Generation Technology, Inc., v. Jaddou, 2023 WL 2570643 (S.D.N.Y. 2023), aff'd No. 23-495 (2d. Cir. 
Apr. 11, 2024). 
3 The Petitioner fashioned this petition as an H-1 B "extension." However, the Beneficiary never utilized the prior petition's 
approval to obtain H-lB status, and USCIS revoked its approval before the instant petition was filed. Thus. there was 
neither an H-lB petition nor any H-lB status to "extend." 
2