remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 27, 2024 In Re: 33608870 
Appeal of Nebraska 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. § l 10l(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 Nebraska Service Center revoked the approval of the petition with a finding of 
fraud, concluding that the Petitioner did not rebut the evidence that showed that the Petitioner worked 
with another entity to unfairly increase the chance of the Beneficiary's selection in the H-lB 
registration process. 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 I&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. 
I. LAW 
To ensure a fair and equitable allocation of the available H-lB visas in any given fiscal year, U.S. 
Citizenship and Immigration Services (USCIS) has instituted the registration requirement contained 
at 8 C.F.R. § 214.2(h)(8)(iii)(A)(i) . A petitioner must register to file a petition on behalf of a non­
citizen beneficiary electronically and a registration must be properly submitted pursuant to 8 C.F.R. 
§ 103.2(a)(l) and the applicable form instructions to render a petitioner eligible to file an H-lB 
petition . 
A petitioner submitting a registration is required to attest under penalty of perjury that they have not 
worked with or agreed to work with another registrant, petition, agent, or other individual or entity to 
submit a registration to unfairly increase the chances of selection for the beneficiary in that specific 
registration. IfUSeIS finds that this attestation was not true and correct (for example, that a company 
worked with another entity to submit multiple registrations for the same beneficiary to unfairly 
increase chances of selection for that beneficiary), users will find that the registration was not 
properly submitted. This renders a petitioner ineligible to file a petition based on that registration 
pursuant to 8 e.F.R. § 214.2(h)(8)(iii)(A)(l). 
Moreover, users may revoke the approval of an H-lB petition pursuant to 8 e.F.R. 
§ 214.2(h)(l 1 )(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 or the application for a 
temporary labor certification 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 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 USeIS provide notice consisting of a detailed statement of the grounds 
for revocation of the petition approval and provide an opportunity for the petitioner to respond to the 
notice of intent to revoke. 8 e.F.R. § 214.2(h)(l l)(iii)(B). 
II. ANALYSIS 
The Petitioner filed the underlying petition on behalf of the Beneficiary seeking new employment and 
requesting consideration under the H-1 B numerical limitation (H-1 B cap). After initially approving 
the petition, the Director notified the Petitioner ofUSerS' intent to revoke the approval of the petition 
with a finding of fraud through a notice of intent to revoke (NOIR). The Director concluded that the 
Petitioner's response to the NOrR did not sufficiently rebut the derogatory information and 
accordingly revoked the petition's approval with a finding of fraud. The Petitioner now appeals the 
Director's revocation of the petition's approval. 
Upon de novo review, we conclude that the Director did not sufficiently articulate the grounds to 
revoke the petition based upon the Petitioner's potential collusion with other entities to unfairly 
increase the chances of the Beneficiary's selection in the H-1 B registration process or the related 
finding of fraud. For that reason, we will withdraw the Director's finding of fraud and remand the 
matter for entry of a new decision consistent with the analysis below. 
2 
The Director advised the Petitioner in the NOIR that it appeared that the Petitioner worked with 
another entity to submit multiple H-lB registrations to unfairly increase the chances of selection for 
the Beneficiary. Specifically, the Director asserted that the Petitioner is related to and worked with 
another company, I I to file multiple registrations for the 
Beneficiary to unfairly increase the chances of selection. The Director stated that this conclusion was 
based upon users records which show that the Petitioner andl Iboth used the same IP address 
to submit their H-1 B cap registrations, that both companies used the same individual as their 
authorized signatory on these submissions, that the authorized signatory used the same phone number 
for both companies, and that the companies have 68 overlapping registrations between them, including 
for the Beneficiary in this matter. Based upon this information, the Director further advised the 
Petitioner that users determined that the multiple cap registrations submitted by these companies for 
the Beneficiary contain a willful misrepresentation of a material fact made to a users official with 
the intent to deceive for the purposes of obtaining an immigration benefit, and therefore the Director 
intended to revoke the petition approval with a finding of fraud. 
The Petitioner responded to the NOIR, acknowledging thatl I is a related entity and that the 
companies use the same authorized signatory for its H-lB registrations. The Petitioner asserted, 
however, that the fact of a corporate affiliation between entities that both file an H-1 B registration for 
the same beneficiary is not sufficient to demonstrate willful misrepresentation, fraud, an intent to 
deceive, or collusion. The Petitioner pointed to the regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) which 
permits the filing of multiple H-lB petitions by related entities in the same fiscal year, so long as there 
is a legitimate business need for the multiple filings. The Petitioner asserted that both it and I 
have legitimate business needs for the programmer/analyst position that was offered to the Beneficiary 
and was the basis for the multiple H-lB registrations. The Petitioner stated that the attestation it made 
in submitting the H-lB registration for the Beneficiary was therefore true and correct. Accordingly, 
the Petitioner asserted that there is no basis in law for the revocation of the approval. 
The Director concluded that the response was insufficient. The Director acknowledged that the 
Petitioner and I I established that both entities submitted their H-lB registrations based upon 
legitimate business needs, but stated that the attestation provides a legal basis for denying the H-lB 
petition due to the multiple registrations, "even if there is a legitimate business need and separate, 
bona fide job offers." Regarding the regulation at 8 e.F.R. § 214.2(h)(2)(i)(G), the Director concluded 
that this is inapplicable to the filing of multiple H-lB registrations by related entities, because it only 
pertains to the filing of multiple H-1 B petitions by related entities. The Director again concluded that 
"[ w ]hile we concede that you established a legitimate business need and bona fide job offer for each 
company, this is not relevant when it comes to determining whether companies worked together to 
increase the chances of a beneficiary's selection in the H-lB cap lottery." 
On appeal, the Petitioner submits a brief and an additional affidavit from a human resources employee 
of the Petitioner. The Petitioner repeats on appeal the assertion that the regulations permit the filing 
of multiple H-lB registrations by related entities when there is a legitimate business need, pursuant to 
8 e.F.R. § 214.2(h)(2)(i)(G). The Petitioner asserts that, because the H-lB registration process is 
currently required for H-lB petitions subject to the cap, if it is permitted for related entities to file 
multiple petitions in the same fiscal year when there is a legitimate business need, there must be the 
same allowance for the filing of multiple registrations, otherwise the regulation would be meaningless. 
3 
I 
I 
The Petitioner also maintains that it had no intent to deceive, that it intended to certify the attestation 
truthfully, and therefore did not commit fraud. 
In the affidavit submitted on appeal, the human resources employee states that the Petitioner was 
advised by immigration counsel to file the 68 overlapping H-lB registrations for "each candidate 
under both [ the Petitioner] and I although initially the Petitioner had planned that only I 
would submit these H-lB registrations, and not both entities. The employee states that previously, it 
would submit H-lB registrations "for candidates under either I lor [the Petitioner], not both." 
We are sympathetic to the Director's concerns regarding the submission of these H-lB registrations. 
The Petitioner and I I submitted 68 overlapping registrations, are related entities, and have stated 
that they knowingly submitted the common registrations including the one in this matter. 
Nevertheless, we conclude that a remand is warranted in this matter because the Director did not 
provide sufficient notice of the specific grounds for revocation based upon this information. Instead, 
the Director reminded the Petitioner of the website instructions for the H-lB registration process, 
which advise petitioners of the attestation that the registrant certifies, under penalty of perjury, that 
the registration reflects a legitimate job offer and that the registrant has not worked with other entities 
or individuals to unfairly increase the chances of selection for the beneficiary of the submission. 
Additionally, the instructions state that: 
If users finds that this attestation was not true and correct (for example, that a 
company worked with another entity to submit multiple registrations for the same 
beneficiary to unfairly increase chances of selection for that beneficiary), users will 
find that registration to not be properly submitted. Since the registration was not 
properly submitted, the prospective petitioner would not be eligible to file a petition 
based on that registration in accordance with the regulatory language at 8 CFR 
§ 214.2(h)(8)(iii)(A)(l). users may deny or revoke a petition based on a registration 
that contained a false attestation and was therefore not properly submitted. 
The Director also advised the Petitioner that 8 C.F.R. § 103.2(a)(l) requires that every benefit request 
be submitted in accordance with the form instructions, and further that the website instructions here 
function as form instructions within the meaning of 8 C.F.R. § 1.2. But the revocation regulations 
require that the Director provide a petitioner a detailed statement of the specific grounds for revocation. 
8 e.F.R. § 214.2(h)(l l)(iii)(A) and (B). We conclude that the Director has not done so here. Although 
the Director reminded the Petitioner of the attestation that it certified in submitting its H-lB 
registrations, the Director did not sufficiently notify the Petitioner of the grounds for revocation under 
8 e.F.R. § 214.2(h)(l l)(iii)(A) and (B), for example, that the approval of the petition violated the 
requirements of section 101(a)(l5)(H) of the Act or paragraph (h) of 8 C.F.R. § 214.2 or that it 
involved gross error. 
Additionally, we recognize that the Director has concluded that both the Petitioner and I I filed 
their overlapping H-lB registrations based upon legitimate job offers, but that the Petitioner 
nevertheless did not truthfully certify the required attestation. The Director interprets the attestation 
to entirely prohibit related entities from working together to submit multiple registrations for the same 
beneficiary-regardless of the existence oflegitimate job offers or legitimate business needs-because 
this will per se unfairly increase the chances of that beneficiary's selection. But based upon the 
4 
affidavit submitted on appeal, the Director may wish to consider whether the evidence supports the 
conclusion that each of the overlapping H-1 B registrations, including the one in this matter, reflects a 
legitimate job offer. 
Separately, we also conclude that the Director did not sufficiently articulate a basis to support the 
finding of fraud. As outlined by the Board of Immigration Appeals (BIA), a material 
misrepresentation requires that an individual willfully make a material misstatement to a government 
official for the purpose of obtaining an immigration benefit to which one is not entitled. Matter ofKai 
Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). The term "willfully" means knowing and 
intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are 
otherwise. See Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 1998); Matter ofHealy and Goodchild, 
17 I&N Dec. 22, 28 (BIA 1979). To be considered material, the misrepresentation must be one which 
"tends to shut off a line of inquiry which is relevant to the foreign national's eligibility, and which 
might well have resulted in a proper determination that he be excluded." Matter ofNg, 17 I&N Dec. 
536, 53 7 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, he or she must determine: 1) that the petitioner or beneficiary made a false representation 
to an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and 3) that the fact misrepresented was material. See MatterofM-, 6 I&N Dec. 149 (BIA 1954); 
Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter ofKai Hing Hui, 15 I&N Dec. at 289-90. 
Additionally, the USCIS Policy Manual provides the framework for fraud determinations including 
the specific elements which must be established to sustain a finding of fraud. See generally 8 USCIS 
Policy Manual J.2(C), https://www.uscis.gov/policy-manual. This includes the immigration officer 
making a determination that the individual or petitioner, when making the false representation, had 
the intent to deceive a U.S. government official authorized to act upon the request and that the U.S. 
government official believed and acted upon the false representation. 
In the instant matter, despite the valid concerns relating to the legitimacy of the H-lB registration, the 
Director did not provide an adequate analysis of these factors to support the finding of fraud. The 
Director did not discuss the specific framework for making a fraud determination as provided by 
administrative case law and USCIS policy guidance and did not apply the facts of the instant matter 
to each of the required elements in the framework. Therefore, we will withdraw the Director's finding 
of fraud. 
III. CONCLUSION 
The Director's revocation of the previously approved petition based upon the finding that the 
Petitioner worked with another entity or entities to submit multiple H-1 B registrations to unfairly 
increase the chances of selection for the Beneficiary is withdrawn, as is the finding of fraud based 
upon this ground. The Director may choose to consider our observations as they evaluate the record. 
And if appropriate the Director may issue a NOIR that sufficiently articulates a ground or grounds to 
revoke the petition. We express no opinion regarding the ultimate resolution of this case on remand. 
5 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
6