dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN . 02, 2023 In Re : 25693623 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations . See Immigration and Nationality Act (the Act) section 10l(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 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 California Service Center revoked the petition's approval , concluding that the 
Petitioner and the Beneficiary were not exempt from the H-lB numerical limitations contained at 
section 214(g)(5)(C) of the Act. 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 ofCha wathe, 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. REVOCATION 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-lB petition 
pursuant to 8 C.F.R . § 214 .2(h)(l l)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of intent 
to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petition in the capacity 
specified in the petition; or 
(2) The statement of facts contained in the petition ... was not true and correct , 
inaccurate, fraudulent , or misrepresented a material fact; or 
(3) The petition violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101 (a)( 15)(H) of the Act or 
paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
The regulations require that USCIS provide notice consisting of a detailed statement of the grounds 
for revocation and provide an opportunity for the petitioner to respond to the notice of intent. 
The Director's statements in the notice of intent to revoke (NOIR) adequately notified the Petitioner 
of the reasons to revoke the approval of its petition and afforded them an opportunity to respond. 
Subsequently, the Director revoked the petition's approval. We will dismiss the appeal for the reasons 
below. 
II. PETITION SUBJECT TO H-lB NUMERICAL LIMITATION 
A. Legal Framework 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for 
specialty occupations. See section 101 (a)(l5)(H)(i)(b) of the Act. H-lB visas are numerically limited, 
or "capped," to 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 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) (exempting physicians who have received a waiver of their home residency 
requirement under section 212( e) of the Act, 8 U.S.C. § 1182( e ), upon a request by an interested federal 
or state agency); 8 C.F.R. § 214.2(h)(8)(ii)(A) (exempting beneficiaries already counted towards the 
"cap" from counting again for petition extensions and extension of stay). A beneficiary is counted 
against the "cap" if they are issued an H-1 B visa or otherwise provided H-1 B nonimmigrant status. 
8 C.F.R. § 214.2(h)(8)(ii)(A). An H-lB visa is a travel document and does not provide H-lB status. 
A noncitizen is provided status in the United States when they are inspected by an immigration officer 
at entry. See section 10l(a)(l3)(A) of the Act, 8 U.S.C. § l 10l(a)(l3)(A). When an approved H-lB 
is not used because the beneficiary does not apply for admission to the United States, the petition's 
approval is automatically revoked pursuant to 8 C.F.R. § 214.2(h)(l l)(ii). Upon revocation, USCIS 
will "take into account" the unused number during the appropriate fiscal year. See 8 C.F.R. 
§ 214.2(h)(8)(ii)(B). 
B. Procedural and Factual History 
The Petitioner filed this petition on July 2, 2020 seeking a change in the Beneficiary's employment 
and an extension of their stay in H-lB classification. The Petitioner claimed that this petition was 
exempt from the H-lB numerical limitations because the Beneficiary had been previously counted 
against the H-lB "cap" based on a petition filed by the Beneficiary's first employer for potential 
employment in the United States. The Beneficiary's first employer filed an H-lB petition in June 
2008 that was approved. And the Beneficiary applied for and was issued an H-lB visa from the U.S. 
Consulate in Mumbai (Bombay), India in October 2008. The Beneficiary never sought admission to 
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the United States in H-lB classification to work for their first employer. Their first employer 
subsequently requested withdrawal of the H-lB petition filed on behalf of the Beneficiary. users 
acknowledged the first employer's withdrawal and automatically revoked the H-lB petition's approval 
on November 3, 2009 pursuant to 8 e.F.R. § 214.2(h)(l l)(ii). 
Almost two years later, a new employer of the Beneficiary filed an H-lB petition to employ the 
Beneficiary in the United States in H-lB status. The new employer claimed exemption from the 
applicable fiscal year's numerical limitation of H-lB visas based on the petition filed by the 
Beneficiary's first employer in 2008. It was approved, and a series of H-lB petitions filed by the 
Beneficiary's employers have followed throughout the years. Each one has claimed "cap" exemption 
from the applicable fiscal year's numerical limitations based on the original petition filed by the 
Beneficiary's first employer in 2008. 
On July 13, 2020, users approved the petition that is before us today. The Petitioner's Form r-129 
claimed exemption from the applicable fiscal year's numerical limitations based on the original 
petition filed by the Beneficiary's first employer in 2008 like those that came before it. users issued 
a notice of intent to revoke (NOrR) this approval on January 11, 2022 because it received information 
in connection with a different petition filed by the Petitioner for the Beneficiary. The information 
showed that this petition was approved in gross error because the regulations at 8 e.F.R. § 214.2(h)(8) 
were violated. The Director revoked the petition's approval on April 13, 2022. 
e. Analysis 
On appeal, the Petitioner argues that the regulations at 
8 e.F.R. §§ 214.2(h)(8)(ii)(A) and (ii)(B) should 
be read in the disjunctive so that their petition can be exempt from the "cap." The Petitioner's 
argument is unpersuasive. 
The regulations cited by the Petitioner at 8 e.F.R. §§ 214.2(h)(8)(ii)(A) and (ii)(B) are not disjunctive. 
They are required to be read together to give the rules their proper meaning. If the regulations were 
written in the Petitioner's preferred disjunctive manner, individuals who were not present in the United 
States and had no intention of working in the United States for United States employers would be 
permitted to reap the benefits of exemption from the H-lB "cap." 
The H-lB program is a numerically limited benefit. So it is important to reserve this scarce benefit 
for those best positioned to contribute to the workforce needs of United States employers. A 
beneficiary cannot contribute to the needs of United States employers if they are not physically in the 
United States and/or the United States employer seeking their services no longer has the intent to 
employ a beneficiary in the specialty occupation. The regulations require a beneficiary be "issued a 
visa or otherwise provided nonimmigrant status" to count towards the "cap." See 8 e.F.R. 
§ 214.2(h)(8)(ii)(A). The Petitioner would like us to consider anyone issued a H-lB visa to have been 
afforded H-lB status and count against the "cap." But the issuance of an H-lB visa does not in and 
of itself grant any immigration status to a beneficiary. For a noncitizen outside the United States, only 
entry after inspection can permit a noncitizen to be afforded a status in the United States when they 
possess a valid visa. See section 10l(a)(l3)(A) of the Act. So the regulations are read together to 
require that a beneficiary outside the United States with an H-1B visa be provided H-1B status and 
counted against the H-1 B numerical limitation only upon admission to the United States. If such a 
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beneficiary is not admitted to the United States, then the pet1t10n is revoked. See 8 C.F.R. 
§ 214.2(h)(8)(ii)(B). And that beneficiary would then be subject to the H-lB numerical limitations in 
the future unless exempt. 
Here, the Beneficiary's first employer and the Beneficiary themselves took two respective affirmative 
actions. The Beneficiary did not seek admission to the United States and the Beneficiary's first 
employer withdrew the H-1 B petition they filed on behalf of the Beneficiary. Petitioners are required 
to withdraw unused H-1 B petitions, including when a beneficiary does not apply for admission to the 
United States. 8 C.F.R. § 214.2(h)(8)(ii)(B). These actions result in that petition's revocation under 
8 C.F.R. § 214.2(h)(l l)(ii) and the return of the H-lB visa number to the pool of available numbers 
for the appropriate fiscal year. These are two separate actions but they have the same result: the 
Beneficiary never held H-lB status pursuant to the petition filed by their first employer. For the 
Beneficiary to be exempt from the numerical limitations at section 214(g)(l)(A) of the Act, they must 
have held H-lB status. And since the Beneficiary never held H-lB status on the basis of the only 
petition ever filed on their behalf that did not seek exemption from the H-1 B "cap," it follows that they 
were never counted against the "cap." 
The USCIS will only "take into account" an H-lB visa forfeited in the manner described above after 
a beneficiary has not applied for admission and the unused petition is revoked. So how or when the 
"cap" number was subsequently "taken into account" by USCIS in the appropriate fiscal year is 
irrelevant. What is relevant to determining whether the Beneficiary counted against the "cap" is 
whether they were admitted to or otherwise afforded H-lB classification on the basis of the first 
employer's petition. The Beneficiary was not admitted or otherwise afforded H-1 B classification on 
the basis of the first employer's petition, the unused petition was revoked, and they were not counted 
against the "cap" as a result. 
The Act at section 214(g)(7) only exempts noncitizen beneficiaries of H-1 B petitions from the "cap" 
if they have been counted within the six years prior and would not be eligible for a new six-year period 
ofH-lB classification. The Beneficiary's first employer filed the only H-lB petition on behalf of the 
Beneficiary identified as subject to the numerical "cap" in 2008. The Beneficiary did not subsequently 
seek admission to the United States despite having been issued an H-lB visa. So they were eligible 
for a foll six-year period ofH-lB classification. In 2011 the Beneficiary's second employer filed the 
first H-1 B petition seeking "cap" exemption for them. As the Beneficiary had never been admitted to 
the United States in H-lB classification in the six prior years, the Beneficiary had never been counted 
against the "cap." So the Beneficiary here could not be exempt from the "cap" when their second 
employer filed the first "cap exempt" H-lB petition. Nor were they "cap exempt" for any subsequent 
petition by any of the Beneficiary's sponsoring employers. 
The petition filed by the Beneficiary's first employer was automatically revoked on their request 
because it went unused after the Beneficiary did not seek admission to the United States in H-lB 
classification on its basis. We conclude that a petition automatically revoked for being unused because 
a beneficiary did not seek admission to the United States cannot indefinitely grant a noncitizen 
exemption from the H-1 B program's numerical limitations. Such a noncitizen beneficiary must either 
be counted against the numerical limitations for the fiscal year in which their next petition is filed or 
demonstrate exemption from the numerical limitations. 
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III. DUE PROCESS 
On appeal, the Petitioner contends that the petition's revocation violates the Petitioner's right to 
procedural due process. 1 The Petitioner argues that the discovery of the Beneficiary's ineligibility for 
"cap" exemption occurred too late for any corrective action (now or in the past) such as preparing and 
filing a petition on behalf of the Beneficiary which would be subject to the numerical limitations. The 
Petitioner states that 10 successive petitions by the Beneficiary's previous employers and the Petitioner 
itself have been prepared, filed, and approved without the discovery of the Beneficiary's ineligibility. 
The Petitioner essentially argues that procedural due process demands that we continue to extend an 
immigration benefit despite ineligibility. 
We have no authority to entertain constitutional due process challenges to lawful USCIS action. Cf 
Matter ofSalazar-Regino, 23 I&N Dec. 223, 231 (BIA 2002). Even if we did have that authority, the 
parties would have to demonstrate a showing of "substantial prejudice" to prevail on a due process 
challenge. See De Zavala v. Ashcroft, 385 F.3d 879,883 (5th Cir. 2004). The Petitioner has not shown 
any violation of the regulations that resulted in "substantial prejudice." We are also without authority 
to entertain the Petitioner's arguments to the extent that they advance claims of equitable estoppel. 
See Matter of Hernandez-Puente, 20 I&N Dec. 335, 338-339 (BIA 1991). Estoppel is a form of 
equitable relief available only through the courts. There is no delegation of authority, statute, 
regulation, or policy that permits us to apply this doctrine to the matter before us. See 8 C.F .R. § 2.1 
(2004); See also DHS Delegation Number 0151.1 (effective March 1, 2003). 
There is also no time-bar to our discovery of prior ineligibility in the regulations. We have the 
authority to identify previous ineligibility and correct it through our decisions. See 8 C.F.R. 
§ 214.2(h)(8)(ii)(C) ("[p]etitions received after the total numbers available in a fiscal year are used 
stating that the alien beneficiaries are exempt from the numerical limitation will be denied .. .if USCIS 
later determines that such beneficiaries are subject to the numerical limitation"). USCIS is not required 
to approve petitions where eligibility has not been demonstrated merely because of erroneous prior 
approvals. See Matter ofChurch Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988). 
III. CONCLUSION 
At the time the Petitioner filed the petition on July 2, 2020, USCIS had announced that the H-1 B 
numerical limit for fiscal year 2020 had already been reached. 2 So this petition would have to 
demonstrate exemption from the "cap" in order to be approvable. The Petitioner has not shown that 
any exemption from the "cap" applies to them or the Beneficiary. Grossly erroneous or mistaken 
determinations of "cap-exemption" do not create an automatic and enduring "cap-exemption" for 
subsequent petitions. And the approval of any "cap" subject petition, such as this one, approved for 
1 The Petitioner's due process argument mainly consists of their conclusions based on a set of facts from proceedings 
spanning over a decade and to which they were not a party. There could have been many reasons why the Beneficiary's 
previous employers and the Beneficiary made their choices or took actions over the last ten years and more. The Petitioner 
is not in a place to divine the thoughts, intentions, or conclusions of the Beneficiary's previous employers from those 
choices or actions. Nor are we. We only examine here whether the revocation of this petition was proper under the 
regulations. 
2 USCIS Reaches FY 2020 H-lB Regular Cap, https://www.uscis.gov/archive/uscis-reaches-fy-2020-h-lb-regular-cap. 
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the beneficiary of a petition that went unused petition because the beneficiary never applied for 
admission to the United States was grossly erroneous because it was approved in violation of the 
applicable regulations. This petition's approval was consequently appropriately revoked by the 
Director pursuant to 8 C.F .R. § 214.2(h)(l 1 )(iii). 
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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