remanded H-1B Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 17, 2023 In Re: 28157749 
Appeal of Nebraska 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)(l5)(H)(i)(b) , 
8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-IB 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 Nebraska Service Center revoked the petition's approval because the Petitioner 
did not respond to the Director 's notice of intent to revoke within the prescribed period. 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 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 withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
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)(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: 
(1) The beneficiary is no longer employed by the petitioner 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)( l 5)(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) notified the Petitioner of the reasons 
for revocation and afforded them an opportunity to respond. But the Petitioner did not submit a timely 
response. 1 Subsequently, the Director revoked the petition's approval. 
The Petitioner appeals the Director's revocation of the petition's approval and submits a brief 
supported by copies of the Forms 1-129, Petition for Nonimmigrant Worker filed on behalf of the 
Beneficiary by the Petitioner and the Beneficiary's current employer, 2 a copy of email correspondence 
with a USCIS employee who administered an administrative site visit at the Petitioner's office with 
documentation attached to the email responsive to the USCIS employee's requests, and unnotarized 
affidavits from the Beneficiary and the Petitioner's vice president, human resources. 3 
II. ANALYSIS 
Upon de novo review on appeal, we conclude that a remand is warranted in this matter. 
The Director's decision to revoke the petition's approval did not follow proper revocation procedures. 
The Director did not cite to one of the revocation criteria enumerated at 8 C.F.R. § 
2 l 4.2(h)(l l )(iii)(A)( 1)-( 5) as the basis for revocation in their decision. The Director appears to justify 
their revocation of the petition's approval because the Petitioner did not timely respond to their NOIR. 
An H-lB petition's approval may only be revoked on notice for one of the criteria contained at 8 
C.F.R. § 214.2(h)(l l)(iii)(A)(l)-(5). And the regulatory criteria do not permit revocation of the 
1 USCTS records reflect the Director's NOTR was dispatched to the Petitioner and their counsel on September 22, 2022. 
The record does not contain clear evidence supporting the Petitioner's claims of non-receipt of the Director's NOIR. In 
the absence of clear evidence to the contrary, adjudicators must presume that government officials properly discharged 
their official duties. United States v. Armstrong, 517 U.S. 456, 464 (1996); Matter of P-N-, 8 l&N Dec. 456, 458 (BIA 
1959). This "presumption of regularity" requires us to presume the accuracy of information recorded in USCIS systems. 
2 The evidence the Petitioner introduced into the record indicates the Beneficiary has changed employer. USCIS records 
reflect the Beneficiary has subsequent to their change of employer departed the United States, applied for and been issued 
a U.S. visa, and been readmitted to the United States in H-1 B status to work for their new employer. 
3 The Petitioner provides the argument and supporting documentation on appeal which they should have provided in a 
timely response to rebut the Director's NOTR. Multiple precedent decisions address whether newly submitted evidence 
on appeal will be considered. See Matter of Obaigbena, 19 T&N Dec. 533,537 (BIA 1988); Matter ofSoriano, 19 T&N 
Dec. 764, 766 (BIA 1988); see also Matter ofJimenez, 21 T&N Dec. 567, 570 n.2 (BIA 1996). Generally, when a Petitioner 
is put on notice ofrequired evidence and given a reasonable opportunity to provide it in the record, we will not consider 
new evidence on appeal. But we have chosen to exercise our discretion in this matter and evaluate the new information, 
documentation, and explanation provided by the Petitioner for the first time on appeal. And while we may not discuss 
every document submitted, we have reviewed and considered each one. 
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approval of a petition for failure to timely respond to a NOIR alone. 4 So the Director's decision must 
be withdrawn and remanded for the Director to conduct farther proceedings and specifically articulate 
under which one or more of the regulatory criteria at 8 C.F.R. § 214.2(h)(ll)(iii)(A)(l)-(5) requires 
the revocation of the petition's approval. 
On appeal, the Petitioner deemphasizes the potentially material nature of the Beneficiary's promotion 
from assistant vice president to vice president. 5 They highlight similarities between the job description 
for the assistant vice president position contained in the Beneficiary's most recent (at that time) 
performance evaluation and a "synopsis ofjob duties and responsibilities" 6 the Beneficiary submitted 
to a USCIS representative following an administrative site visit. Generally, a change in job title in 
isolation does not necessarily constitute a material change requiring an amended petition. For example 
the mere fact that a "person has a particular title - such as partner, director, or vice president - should 
not necessarily be used to determine whether he or she is an employee or a proprietor." See Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988) ( stating that a job title alone 
is not determinative of whether one is employed in an executive or managerial capacity). 
Nevertheless, we are required to evaluate the employment of an individual to conclude whether a 
particular position is a specialty occupation. See Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000). 
If there is a change to an individual's employment, Defensor requires we evaluate its materiality to 
ensure a specialty occupation persists notwithstanding the change. 
While examining the record in farther proceedings on remand, the Director may choose to consider 
the following that we have observed in the course of our de novo review. Specifically, it appears the 
Petitioner's representation of their assistant vice president position in the petition may be inaccurate. 
The description of duties of the assistant vice president position in the petition does not mention any 
supervisory duties. However, the Beneficiary stated in their most recent ( at that time) performance 
evaluation that they had "increased [their] remit to manage a team of direct reports." The Beneficiary's 
manager corroborated the Beneficiary's statement when they evaluated the Beneficiary favorably for 
"manag[ing] a team of team of [sic] two individuals" and "leading [their] new direct reports in the 
production of the PB and O&A businesses." So the Director may choose to farther evaluate whether 
the assistant vice president job description the Petitioner provided at the time of filing the petition 
reflecting no supervisory or team leadership duties was correct and accurate in light of the information 
contained in the Beneficiary's performance evaluation in that position containing contrary 
4 For example, if a hypothetical NOTR cited 8 C.F.R. § 214.2(h)(l 1 )(iii)(A)(I) as a basis for intended revocation, and the 
petitioner did not respond to that NOIR, the director could very reasonably conclude that since the NOIR's concerns 
regarding 8 C.F.R. § 214.2(h)(l l)(iii)(A)(I) had not even been addressed, they had not been overcome. That director 
would then revoke the petition's approval utilizing the revocation authority granted by 8 C.F.R. 
§ 214.2(h)(l l)(iii)(A)(l) because the concerns laid out in the NOIR had not been overcome. 
5 The Petitioner also cites 5 U.S.C. § 706 to contend that the Director acted in an arbitrary and capricious manner because 
of the time between the administrative site visit performed in this matter and the issuance of the NOIR. We disagree. In 
the first instance, 5 U.S.C. § 706 concerns federal court review of agency action. And, the statute requires the court to 
compel agency action, i.e. perform a non-discretionary action that the agency has not taken yet. Plainly, the NOTR has 
been issued, so there is no action remaining to be taken. And, the Petitioner does not identity what specific section of the 
statute would potentially be implicated in this matter. Thus, we consider the Petitioner's contention misplaced in the 
context of these current proceedings. 
6 It bears mention that the title of the job with the duties and responsibilities contained in the "synopsis of job duties and 
responsibilities" does not appear anywhere in the document. And there are no other markings or identifying characteristics 
that sufficiently indicate whether the document corresponds to the Petitioner's vice president position or even a document 
relating to the Petitioner. 
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information. 7 If not, the Director may wish to evaluate whether the regulation at 8 C.F .R. § 
214.2(h)(l l)(iii)(A)(2) requires revocation of the petition's approval. And if the Beneficiary was 
performing duties not included in the assistant vice president job description at the time the petition 
was filed, the Director may elect to evaluate whether that would lead them to conclude that the 
Beneficiary's performance of those duties was unauthorized and violated the terms and conditions of 
employment such that the regulations require revocation of the petition's approval pursuant to 8 C.F.R. 
§ 214.2(h)(l l)(iii)(A)(3) 
III. CONCLUSION 
We are withdrawing the Director's decision and remanding this matter for further 
processing. The 
Director may choose to consider our observations as they evaluate the record. And if appropriate the 
Director may issue a NOIR that specifically identifies at least one of the five H-lB revocation criteria. 
We express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
7 This may be especially relevant as it could mandate a wage level increase such that the accompanying certified labor 
condition application (LCA) may be rendered non-correspondent to the petition. 
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