remanded H-1B Case: Finance

U.S. Citizenship 
and Immigration 
Services 
In Re: 9253586 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 30, 2021 
The Petitioner, an international financial institution, seeks to temporarily employ the Beneficiary under 
the H-lB nonirnmigrant classification for specialty occupations. See Immigration and Nationality Act 
(the Act) section 101(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. 
In the request for evidence (RFE), the Petitioner was notified that insufficient evidence was submitted 
to establish that the proffered position is a specialty occupation, that the Beneficiary is qualified for 
the proffered position, and that clarification was needed with regard to eligibility for recapture time 
pertaining to the Beneficiary 's previous time spent in the U.S. in L nonimmigrant status. Though the 
Petitioner responded to the RFE, the Director concluded that the documentation provided was not 
sufficient to establish the Beneficiary's eligibility. The Director of the Vermont Service Center based 
her denial solely on her conclusion that the Petitioner did not establish that the Beneficiary spent one 
continuous year outside the country following a previous stay spent in the U.S. for the maximum 
period of six years in Hand /or L nonimmigrant status, and was therefore ineligible for H-lB status. 
In most cases, our decision will be limited to the evidence in the record at the time of the unfavorable 
decision, as the appellate regulations have never explicitly allowed for the submission of evidence 
with regular appeals. Accordingly, when new evidence is submitted with an appeal, we will apply 
both Matter of Soriano 1 and Matter of Obaigbena2 to determine whether we will consider that 
evidence as we adjudicate the appeal. In applying the framework of those cases to the matter at hand, 
we note again that the RFE provided notice to the Petitioner that an evidentiary deficiency prevented 
the Director from determining whether the Beneficiary spent one continuous year outside the country 
following a previous stay spent in the U.S. for the maximum period of six years in H and/or L 
nonimmigrant status, and was therefore ineligible for the requested status. 
1 Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
2 Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
In response to the RFE and again on appeal, the Petitioner asserts that the evidence submitted 
establishes that the Beneficiary spent at least the one continuous year outside of the United States prior 
to seeking re-admission as an H-lB nonimmigrant and therefore the Director erred in reaching her 
determination. We also note that a significant amount of additional evidence that appears directly 
material to that determination has been submitted on appeal. 
The Petitioner had a reasonable opportunity to respond to the evidentiary deficiency through the RFE 
process and, in fact, did provide an RFE response which addressed the time period the Beneficiary 
spent outside the United States prior to seeking re-admission as an H-lB nonimmigrant. The Director 
determined it was not sufficient. With regard to the additional evidence submitted on appeal, while 
we note that it is more voluminous and presented in a much more organized fashion, we do question 
whether the Petitioner was in possession of and/or capable of submitting these documents within its 
RFE response. Accordingly, the AAO is not required to consider this additional evidence submitted 
on appeal, and we conclude that the Director is the more appropriate party to consider its impact on 
the Beneficiary's eligibility for the benefit sought. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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