remanded H-1B Case: Behavior Analysis

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 26, 2024 In Re: 34043026 
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-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(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 California Service Center denied the petition, concluding that the Petitioner did 
not establish that the Beneficiary qualifies for an exemption from the H-lB numerical cap under 
section 214(g)(5) of the Act. The Director dismissed a subsequently filed motion to reopen and 
reconsider. 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 l&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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
As a preliminary matter, we emphasize that the Petitioner has not appealed the March 5, 2024 denial 
of the Form 1-129 itself, but rather the Director's subsequent dismissal of the combined motions to 
reopen and reconsider dated May 3, 2024. In the May 2024 decision, the Director did not affirm the 
prior denial but rather, the Director concluded that the motions did not meet the applicable requirements. 
Therefore, the question before us on appeal is whether the Director erred in dismissing the combined 
motions. Although the March 2024 denial is not before us, we will refer to portions of that decision for 
context. 
The Petitioner filed the H-lB petition and stated that it seeks to employ the Beneficiary as a board 
certified behavior analyst to directly and predominantly further the essential functions of the 
Department of Special Education and Child Development in the _________ at the 
("the University") . The Petitioner explained that it is cap I 
exempt since it is a third party petitioner due to its active affiliation with the University, since the 
Beneficiary will be employed at a qualifying organization. Further, the Petitioner noted that the 
Beneficiary will spend the majority of her work time performing job duties at a qualifying institution 
and those job duties directly and predominately further the essential purpose of the qualifying 
institution. 
The Director denied the petition, concluding that the Petitioner did not show that it is exempt from the 
H-lB cap pursuant to 8 C.F.R § 214.2(h)(8)(ii)(F)(4), or that an H-lB cap visa is otherwise available 
to the Beneficiary. See 8 C.F.R § 214.2(h)(8)(ii)(B). The Director indicated that the Petitioner did 
not detail how the Beneficiary's duties directly and predominantly further the essential purpose, 
mission, objectives or functions of the qualifying institution or how much of the beneficiary's time is 
spent supervising clinical training to those students. The Director also listed the Beneficiary's 
worksites and noted that the Petitioner did not sufficiently establish that the Beneficiary will spend the 
majority of her work time at the University. 
The Director dismissed a subsequently filed motion to reopen and reconsider, and the Petitioner now 
appeals the dismissal of the combined motions. On appeal, the Petitioner asserts the Director erred in 
dismissing the combined motions, disregarded critical facts, and did not provide an analysis or 
justification for the dismissal. The Petitioner contends that the Director drew an incorrect conclusion 
of fact regarding the proposed duties of the Beneficiary and the nature of the affiliation between the 
Petitioner and the University. On motion to reopen, the Petitioner submitted a breakdown of time the 
Beneficiary will spend on each job duty and resubmitted the affiliation agreements between the 
Petitioner and the University. In addition, on motion to reconsider, the Petitioner stated the Director 
made an incorrect conclusion oflaw by applying a physical presence test which would require that the 
Beneficiary work the majority of her time on campus. 
In reviewing the Director's May 2024 decision, the decision did not address the evidence and claims 
made in the Petitioner's motion brief with specificity and improperly dismissed evidence without 
proper explanation. When denying a petition, an officer shall explain in writing the specific reasons 
for denial. 8 C.F.R. § 103.3(a)(l)(i). An officer must fully explain the reasons for denial to allow the 
petitioner a fair opportunity to contest the decision and our opportunity for meaningful appellate 
review. Cf. Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that an Immigration Judge must 
fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity to 
challenge the determination on appeal). Here, the Director's errors deprived the Petitioner of a fair 
opportunity to appeal the Director's decision and inhibit our ability to meaningfully review the 
dismissal on appeal. 
We withdraw the Director's decision and remand the matter for further review and entry of a new 
decision. On remand, the Director should review all evidence and arguments submitted in support of 
the Petitioner's motions and appeal and analyze the Petitioner's contentions and evidence to determine 
if the Petitioner is exempt from the H-lB cap pursuant to 8 C.F.R § 214.2(h)(8)(ii)(F)(4), or that an 
H-lB cap visa is otherwise available to the Beneficiary. 8 C.F.R § 214.2(h)(8)(ii)(B). The Director 
may request any additional evidence considered pertinent to the new decision. As such, we express 
no opinion regarding the ultimate resolution of this case on remand. 
2 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
3