dismissed H-1B Case: Unknown

(b)(6)
JUN 1 6 Z015 
DATE: PETITION RECEIPT#: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department: of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form l-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
T. hank. ·ydtf''"'''"'""'' ·) . . ,.,~·""· ' \ 
., ,.. ~-~~.:_,/· 
;, :cb Rosenberg 
· hief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, initially approved the nonimmigrant visa 
petition. Upon subsequent review of the record, the Director revoked the approval of the petition. 
The matter is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. The approval of the petition remains revoked. 
I. LEGAL FRAMEWORK 
The petitioner filed a Petition for a Nonimmigrant Worker (Form I-129), seeking classification 
under section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b) , for an individual to perform services in a specialty occupation (hereinafter 
referred to as an "H-1B visa"). 
In general, H-1B visas are numerically capped by statute. Under section 214(g)(l)(A) of the Act, 
8 U.S.C. § 1184(g)(l)(A) , the total number of H-lB visas issued per fiscal year may not exceed 
65,000 (hereinafter referred to as the "H-1B Cap"). Section 214(g)(5)(C) of the Act provides an 
exemption to the H-1B Cap that allocates up to an additional 20,000 visas to individuals who have 
"earned a master's 
or higher degree from a United States institution of higher education (as defined 
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) . . .. " (hereinafter 
referred to as the "Master's Cap"). 
Section 101(a) of the Higher Education Act of 1965, Pub. Law 89-329, 79 Stat. 1219, as amended 
by the Higher Education Amendments of 1998, P.L. 105-244, 112 Stat. 1585, 20 U.S.C. § 1001(a) 
(Higher Education Act), defines the term "institution of higher education" as a public or nonprofit 
educational institution in any state that, inter alia, "is a public or other nonprofit institution." 
We give the statutory language conclusive weight unless the legislature expresses an intention to the 
contrary. Int'l. Brotherhood of Electrical Workers, Local Union No. 474; AFL-CIO v . NLRB, 814 
F.2d 697, 710 (D.C. Cir. 1987) (citing Consumer Product Safety Commission v. GTE Sylvania, Inc., 
447 U.S. 102 (1980)). The plain meaning of the statutory language should control except in rare 
cases in which a literal application of the statute will produce a result demonstrably at odds with the 
intent of its drafters, in which case it is the intention of the legislators , rather than the strict 
language, that controls. Samuels, Kramer & Co. v. CIR , 930 F.2d 975 (2d Cir.), cert. denied, 112 S. 
Ct. 416 (1991) (citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). 
The regulations prescribe the procedures by which these numerical caps are managed. Relevant to 
the handling of petitions determined not to be eligible for the Master's Cap, 8 C.F.R. 
§ 214.2(h)(8)(ii)(B) provides in pertinent part: "Petitions indicating that they are exempt from the 
numerical limitation 
but that are determined by [U.S. Citizenship and Immigration Services 
(USCIS)] after the final receipt 
date to be subject to the numerical limit will be denied .... " 
US CIS may revoke the approval of an H-1 B petition, on notice and an opportunity to rebut, pursuant to 
8 C.F.R. § 214.2(h)(ll)(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: 
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NON-PRECEDENTDECmiON 
(1) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving training 
as 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 petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 10l(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. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part. If the 
petition is revoked in part, the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the revocation 
notice. 
II. FACTUALBACKGROUND 
In the instant case, when the H-lB petition was filed, the petitioner sent the submission to the 
address designated for "H-1B U.S. Master's Cap Petitions." The envelope and counsel's letter 
requested the submission be adjudicated under the Master's Cap, stating: "Attn: H-1B U.S. Master's 
CAP." Importantly, on the Form I -129 H -1 B Data Collection Supplement (on page 17, Part C.l. ), 
the petitioner specifically requested that the petition be counted against the "CAP H-lB U.S. 
Master's Degree or Higher." 1 The petitioner further specified (on page 17, Part C.2.), that the 
beneficiary had obtained a master's degree from the . and further reported 
that the university was a U.S. institution of higher education as defined in 20 U.S.C. § lOOl(a). The 
Director reviewed the submission and approved the petition. 
Upon subsequent review of the petition, the Director issued a Notice of Intent to Revoke (NOIR). The 
Director notified the petitioner that it appeared that the is a for-profit, 
1 The instructions on the Form I-129 H-lB Data Collection Supplement (Part C) state that if the petitioner is 
requesting that the petition be counted against the "CAP H-lB U.S. Master's Degree or Higher," then it must 
provide information regarding the degree "the beneficiary has earned from a U.S institution as defined in 
20 U.S.C. lOOl(a)." Clarification is also provided on page 7 of the Form I-129 instructions (version 
10/07 Ill) (the version used by the petitioner). 
(b)(6)
NON-PRECEDENTDEC~ION 
Page4 
private corporation and therefore did not qualify as an institution of higher education as defined in 
20 U.S.C. § 1001(a). The petitioner responded 
by confirming that the is 
a for-profit, private corporation and claiming that it had requested the Master's Cap exemption in 
error. 
The Director determined that the petitioner had not overcome the issues set forth in the NOIR, and 
revoked the approval of the petition. The Director concluded that the beneficiary did not earn a 
master's or higher degree from a U.S. institution of higher education as defined in 20 U.S.C. 
§ 1001(a) and, therefore, did not qualify for the claimed Master's Cap exemption. Thereafter, the 
petitioner submitted an appeal. 
III. DISCUSSION 
On appeal, the petitioner acknowledges that the beneficiary is not qualified for the Master's Cap 
exemption but claims that it cannot be determined whether the instant petition was adjudicated 
under the general H-1B Cap 
or under the Master's Cap exemption. As a preliminary matter, we note 
that USCIS electronic records indicate that the instant petition was approved under the Master's Cap 
exemption- as requested by the petitioner on H-IB Data Collection Supplement as well as in 
counsel's cover letter. 
In the appeal, the petitioner acknowledges that it provided inaccurate information to users by 
claiming that the beneficiary possessed a master's degree from a United States institute of higher 
education as defined at 20 U.S.C. § IOOI(a). The petitioner states that it designated the petition 
under the Master's Cap due to an error and not due to fraud or misrepresentation. It asserts, 
however, that USCIS should have overlooked the petitioner's error and not revoked the petition. 
We do not agree. Here, the Director relied upon the accuracy of the petitioner's statements and the 
petition was approved. The numerical limitation was reduced and, consequently, an H-lB petition 
for a different prospective employee (who did qualify for the Master's Cap exemption) was not 
adjudicated. The petitioner has an obligation to ensure that the information it provides to USCIS is 
correct. The impact ofthe petitioner's inaccurate statements cannot be ignored. 
Moreover, under BIA precedent, a material misrepresentation is one which "tends to shut off a line 
of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper 
determination." Matter ofS- and B-C-, 9 I&N Dec. 436, 447 (BIA 1961). The federal courts state 
that the general rule is that a concealment or misrepresentation is material if it "has a natural 
tendency to influence or was capable of influencing, the decision of the decision-making body to 
which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988); Monter v. Gonzales, 
430 F.3d 546 (2d Cir. 2005). 
On appeal, the petitioner has provided some general insights into the reasons for its inaccurate 
statements and error; however, the petitioner has not overcome the grounds for revoking the 
petition. In revocation proceedings, the petitioner bears the burden of establishing that the petition 
qualifies for the benefit sought under the immigration laws. Matter of Ho, 19 I&N Dec. 582, 588-
89 (BIA 1988) (reaffirming Matter of Cheung, 12 I&N Dec. 715 (BIA 1968)). An inaccurate 
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statement anywhere on the Form I-129 or in the evidence submitted in connection with the petition 
mandates its denial. See 8 C.F.R. § 214.2(h)(10)(ii); see also 8 C.F.R. § 103.2(b)(l). It would be 
absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engg. Ltd v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 
(1988). 
The petitioner asserts that if USCIS had determined that the petition was ineligible for the Master's 
Cap, it should have counted the petition towards the general H-I B Cap. However, the relevant 
regulations do not permit H -1 B petitioners to claim eligibility under alternative grounds. The 
regulation at 8 C.F.R. § 214.2(h)(8)(ii)(B) provides in pertinent part: "Petitions indicating that they 
are exempt from the numerical limitation but that are determined by USCIS after the final receipt 
date to be subject to the numerical limit will be denied .... " This regulation was designed to 
ensure a fair and orderly selection process, provide beneficiary's subject to one or both caps an 
equal chance of being selected, and ensure limited agency resources are not wasted since USCIS 
must adjudicate the claim to determine whether the beneficiary is subject to the numerical cap. See 
73 Fed. Reg. 15,389, 15,391-92 (Mar. 24, 2008). 
The petitioner's contention that its petition should have been considered under the general H -1 B 
cap, after USCIS determined that it was not exempt from the cap, is inconsistent with the plain 
language and express intent of the regulation. Moreover, for purposes of the regulation at 8 C.F.R. 
§ 214.2(h)(8)(ii)(B), the determination date for a beneficiary's ineligibility for an exemption to the 
general H -1 B Cap is the date on which that determination is articulated by USCIS in a decision 
properly served upon a petitioner. See 8 C.F.R. §§ 103.2(b)(19), 103.3(a)(l)(i), and 103.8(a)(l). 
Here, the petitioner claimed the beneficiary was eligible for the Master's Cap exemption. The 
Director issued an NOIR, notifying the petitioner ofUSCIS's intent to revoke the petition's approval 
and asking the petitioner to demonstrate the beneficiary's eligibility for the exemption claimed. 
Therefore, at the time the NOIR was issued, the Director had not yet determined that the instant visa 
petition was subject to the standard H-IB numerical limitation at section 214(g)(l)(A) of the Act. 
Rather, the determination date for the beneficiary's ineligibility for the claimed Master's Cap 
exemption is the date the Director's revocation decision was mailed, finding, in part, that the 
petition is not exempt from the standard H-lB Cap. See 8 C.F.R. § 103.8(a)(l) (a decision is 
considered properly served when it is mailed). Because USCIS determined, after the April 5, 2013 
final receipt date, that the petition was not exempt from the standard 65,000 numerical limit, the 
revocation of the petition's approval was warranted. 
V. CONCLUSION 
We conclude that the petition was approved in error based upon the petitioner's inaccurate statement 
that the beneficiary had earned a master's degree from a U.S. institution as defined in section 101(a) 
of the Higher Education Act of 1965. 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; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The approval of the petition remains revoked.