remanded H-1B Case: Network Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 21, 2025 In Re: 36171661 
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. § 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 California Service Center revoked the approval of the petition with a finding of 
fraud, concluding that the Petitioner violated statutory or regulatory requirements as proscribed by 
8 C.F.R. § 2 l 4.2(h)(iii)(A)( 4) because it did not rebut the evidence that showed that it 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa '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 
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. IfUSCIS 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 the chances of selection for that beneficiary), USCIS 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 C.F.R. § 214.2(h)(8)(iii)(A)(l). 
Moreover, USCIS may revoke the approval of an H-lB petition pursuant to 8 C.F.R. 
§ 214.2(h)(l l)(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 USCIS 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 C.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-lB numerical limitation (H-lB cap). After initially approving 
the petition, the Director notified the Petitioner ofUSCIS' 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 NOIR 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 notify the Petitioner of the 
stated grounds to revoke the petition based upon the Petitioner's potential collusion with another entity 
to unfairly increase the chances of the Beneficiary's selection in the H-1 B registration process and did 
not sufficiently articulate the grounds for the related finding of fraud. For that reason, we will 
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withdraw the Director's finding of fraud and remand the matter for entry of a new decision consistent 
with the analysis below. 
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, and that it therefore falsely certified the attestation made in the submission of its H-1 B 
registration. 1 Specifically, the Director asserted that the Petitioner is related to and worked with 
another company, 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 and I lboth 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, 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 intended to revoke the petition approval with a finding of 
fraud. 
The Petitioner responded to the NOIR, acknowledging that I 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 two 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 andl 
have legitimate business needs for the customer networks engineer position that was offered to the 
Beneficiary and was the basis for the multiple H-1 B 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 this response was insufficient. In addition to the information provided in 
the NOIR, the Director also noted that the H-lB petitions filed by the Petitioner andl lused the 
same signatory, that both organizations were represented by the same counsel, and that their respective 
H-lB filings included nearly identical documentation. The Director also concluded that the job 
description in the Petitioner's H-1 B petition for the Beneficiary appeared to involve providing services 
forl Iat al !office location. The Director discussed the evidence submitted in response to 
the NOIR and concluded that the Petitioner did not support its claim that both it and I I submitted 
their H-1 B registrations based upon separate, legitimate business needs. 
On appeal, the Petitioner submits a brief and additional evidence including an additional affidavit from 
a human resources employee. The Petitioner repeats on appeal the assertion that the regulations permit 
the filing of multiple H-1 B registrations by related entities when there is a legitimate business need 
1 At the time of submission, the H-1 B registration form required certitying the following attestation: "I further certity that 
this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this 
registration ( or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, 
petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the 
beneficiary or beneficiaries in this submission." 
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and that both it and I had legitimate business needs for their respective H-lB registrations. The 
Petitioner asserts that the Director did not consider the evidence submitted in response to the NOIR, 
such as job postings, that it says demonstrate the legitimacy of the job offers. 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] andl Ialthough 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 eitherl lor [the Petitioner], not both." 
We are sympathetic to the Director's concerns regarding the submission of these H-lB registrations. 
The Petitioner andl Isubmitted 68 overlapping registrations, are related entities, and have stated 
that they knowingly submitted the common registrations including the one in this matter. 
Additionally, while not part of the record considered by the Director, the affidavit submitted on appeal 
does not support the conclusion that the Petitioner and I I each had 68 separate, legitimate job 
offers, but rather that the entities had a total of 68 job opportunities between them. This, in tum, 
undermines the Petitioner's claim that each of the overlapping registrations were based on legitimate 
job offers. 
Nevertheless, we conclude that a remand is warranted in this matter because the Director did not 
provide sufficient notice of the basis for revocation. The revocation regulations require that the 
Director provide notice consisting of a detailed statement of the specific grounds for revocation and 
the opportunity for the petitioner to respond and submit evidence. 8 C.F.R. § 214.2(h)(l l)(iii)(A) and 
(B). We conclude that the Director has not done so here. Although the Director advised the Petitioner 
in the NOIR of the intent to revoke the petition, the Director did not include in the NOIR several of 
the specific factual allegations upon which the finding of revocation was eventually made. The 
revocation notice includes information that the Director considered derogatory but to which the 
Petitioner did not have the opportunity to respond-for example, the similarities between the H-lB 
petition filings from the Petitioner and I I and the fact that the Petitioner's job duties appear to 
involve providing services to I I at al Ioffice location. On remand, the Director should 
consider the Petitioner's claims on appeal regarding these findings, in addition to the job descriptions 
and requisitions included in the NOIR response, and whether they overcome any of the derogatory 
information in the revocation notice. 
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 197 5). 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 
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might well have resulted in a proper determination that he be excluded." Matter ofNg, 17 I&N Dec. 
536, 537 (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 violated requirements of section 101 (a)( 15)(H) of the Act or paragraph (h) of the regulations 
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. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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