remanded H-1B Case: Information Security

U.S. Citizenship 
and Immigration 
Services 
In Re: 15745043 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 19, 2021 
The Petitioner, a consumer banking and financial services company, seeks to temporarily employ the 
Beneficiary as a "corporate information security analytics principle engineer" under the H-lB 
nonimmigrant classification for specialty occupations . See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(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 Texas Service Center denied the petition, concluding that the Beneficiary did not 
maintain his F-1 status. On appeal , the Petitioner submits a brief, and asserts that the Director erred . 
Specifically , the Petitioner argues that the Beneficiary maintained their immigration status I and that 
the Director failed to provide a decision regarding the validity of the underlying H-1B petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence . 2 We review the questions in this matter de novo. 3 Upon de novo 
review , we will remand the matter for further action. 
1 There is no provision in the regulations for an appeal from a denial of the change of status request made on behalf of the 
Beneficiary. See 8 C.F.R. §§ 214. l(c)(5) , 248.3(g); see also DHS Delegation Number 0 150.1 ( effective March 1, 2003) ; 8 
C.F.R. § 2.1 (2003) . We therefore have no jurisdiction over this matter and consequently will address neither (1) the 
Director's determination regarding the Beneficiary 's status, nor (2) the claims made on appeal contesting that 
determination . 
2 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc ., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . 
The Form 1-129 consists of separate benefit requests.4 As it pertains to the matter at hand, the two benefit 
requests are: (1) the petition to classify the employment offer as appropriate for the H-lB category (the 
basis for classification); and (2) an application for the procedural benefit relevant to the beneficiary's 
authorized stay in the United States (a beneficiary's change of status to the H-lB nonimmigrant status 
and an extension of stay). 5 When filing the petition, the Petitioner indicated on the Form 1-129 that the 
basis for classification was "new employment" and the requested action was marked as "change the 
person's status and extend their stay .... " The Petitioner should have received a determination on 
each of the two benefits requested . 
The Director erred by issuing a decision that appears to conflate these two separate issues when they 
denied the H-lB classification based on evidence that the Beneficiary did not maintain his F-1 
nonimmigrant student status. The underlying issues ofH-lB eligibility , such as whether the proffered 
position is a specialty occupation and, if so, whether the Beneficiary is qualified to perform the duties 
of the position, remain undecided . Instead, the Director's entire H-lB determination decision appears 
to have been based on the Beneficiary not appearing to qualify for the requested change of status. As 
the record does not include analysis and conclusions regarding the merits of the H-1 B petition itself, 
the matter must be remanded for the issuance of a full determination on that issue. 
We are therefore withdrawing the Director's decision and remanding this matter for further processing . 
As noted, the issue of the Beneficiary's status lies outside the scope of our jurisdiction . The Director 
should, however, make a determination on the merits of the H-lB petition itself. 
ORDER: The Directo r' s decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
4 These functions previously required two to three separate filings depending upon whether a change of status was being 
requested: one by the petitioner (Form l-129H) and the others by the beneficiary (Forms 1-506 and 1-539). For example , 
in 1991 the regulations provided that a petitioner "shall file a petition in duplicate on Form 1-129H with the service center 
which has jurisdiction over I-129H petition s in the area where the alien will perform services or receive training or as 
further prescribed in this section ." 8 C.F .R. § 214.2(h)(2)(i)(A) (1991 ). Further , the 1991 regulations required applications 
for a change of status or visa classification to be submitted by the nonimmigrant alien on Form I-506 , Applicant for Change 
ofNonimmigrant Status, filed with the district director having jurisdiction over the place of employment if changing to H 
or L status. 8 C.F.R. § 248.3(a) and (b) (1991). In addition , the 1991 regulations provided that "[a]n alien ... shall apply 
for an extension of stay on Form I-539 . . .. [E]ach alien seeking an extension of stay generally must execute and submit a 
separate application for extension of stay to the district office having jurisdiction over the alien's place of temporary 
residence in the United States." 8 C.F.R. § 214.l(c)(l) (1991). In implementing the Immigration Act of 1990, Pub. L. No. 
101-649, 104 Stat. 4978 , these functions were combined into one form (Form I-129) to more efficiently process the separate 
requests . See 56 Fed. Reg. 61111 (Dec. 2, 1991); 56 Fed. Reg. 61201, 61204 
(Dec. 2, 1991). 
5 See the Form 1-129 instructions found at: https://www.uscis.gov/sites/default/files/document /forms/i-l29instr.pdf. Page 
five of the instructions lists the different uses of the Form 1-129 including the one at issue which is a request to"[ c ]hange 
the status and extend the stay of beneficiari es who are now in the United States in another status." 
2