remanded H-1B Case: Social Work

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 24, 2023 In Re: 27547016 
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 nonirnrnigrant 
classification for specialty occupations . See Immigration and Nationality Act (the Act) 
section 10l(a)(l5)(H)(i)(b), 8 U.S .C. § 110l(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 California Service Center Director denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary qualifies for an exemption from the H-lB numerical cap under section 
214(g)(5) of the Act. 
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 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 
Section 10l(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b), provides a nonimmigrant 
classification for foreign nationals who are corning temporarily to the United States to perform 
services in a specialty occupation . In general, H-lB visas are numerically capped by statute. Pursuant 
to section 214(g)(l)(A) of the Act, 8 U.S.C. § 1184(g)(l)(A), the total number of H-lB visas issued 
per fiscal year (FY) may not exceed 65,000. Generally, H-lB petition beneficiaries are allocated one 
of these numerically-limited visa numbers and a cap number upon the petition's approval. See section 
214(g)(3) of the Act; 8 C.F.R. § 214 .2(h)(8)(ii)(A)-(B). 
The regulation at 8 C.F.R § 214.2(h)(8)(iii)(F) provides, in pertinent part, that [an H-lB Beneficiary] 
is not subject to the numerical limitations identified in section 214(g)(l)(A) of the Act if [he or she] 
qualifies for an exemption under section 214(g)(5) of the Act. For purposes of section 214(g)(5)(A) 
and (B) of the Act: 
(1) "Institution of higher education" has the same definition as described at section 
lOl(a) of the Higher Education Act of 1965 (20 U.S.C. l00l(a)). 
(2) A nonprofit entity shall be considered to be related to or affiliated with an institution 
of higher education if it satisfies any one of the following conditions: 
(iv) The nonprofit entity has entered into a formal written affiliation agreement with an 
institution of higher education that establishes an active working relationship between 
the nonprofit entity and the institution of higher education for the purposes of research 
or education, and a fundamental activity of the nonprofit entity is to directly contribute 
to the research or education mission of the institution of higher education. 
II. ANALYSIS 
The Petitioner is a nonprofit organization dedicated to providing social services to senior citizens and 
people with special needs. It was founded in 2007 and has established a senior center "catering to 
South Asian values and culture," which "offers a welcoming space where seniors could take yoga 
classes or workshops that taught better health practices, and enjoy nutritious, culturally appropriate 
congregate meals." The Petitioner further indicates that its programs are "designed to foster 
community and friendship, stimulate mental health and physical fitness, [ and] empower our elders 
through knowledge and encourage them to come together to creatively solve problems or advocate for 
their rights." 
It seeks to employ the Beneficiary as a social worker and designated the proffered position on the labor 
condition application (LCA) as an Occupational Information Network (O*NET) Standard Occupation 
Classification (SOC) code 21-1023 "Mental Health and Substance Abuse Social Workers." The 
Petitioner filed the petition in April 2022, seeking an H-1B cap exemption under section 214(g)(5) of 
the Act. On the instant Form 1-129, H-1B and H-1B1 Data Collection and Filing Fee Exemption 
Supplement (Form 1-129 Supplement), the Petitioner marked that it is "a nonprofit organization or 
entity related to or affiliated with an institution of higher education, as defined in 8 C.F.R § 214.2 
(h)(l 9)(iii)(C)." In the initial letter, the Petitioner stated that it "qualifies as a cap exempt institution 
under 8 C.F.R § 214.2(h)(8)(iii)(F)(2)(iv)." 
The Director first issued a request for evidence (RFE), then a notice of her intention to deny the petition 
(NOID), explaining in each notice why the evidence provided was insufficient to establish that the 
Petitioner met the qualification requirements for cap exemption under 8 C.F.R § 214.2(h)(8)(iii)(F). 
Ultimately, the Director denied the petition, noting that the Petitioner indicated in its response to the 
NOID that it met the regulatory requirements as an affiliated nonprofit through its agreements withD 
□university [S-] andl !University [N-]. 
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In denying the petition, the Director first discussed the Petitioner's relationship with N-, concluding 
that while the two entities shared contractual agreements calling for the Petitioner to provide services 
to N-, the nature of the services provided did not appear to directly contribute to N-'s higher education 
or research mission. As a result, the Director determined that the service agreements between the 
Petitioner and N- were not qualifying affiliation agreements under 8 C.F.R § 214.2(h)(8)(iii)(F)(2)(iv). 
The Director then turned to the evidence regarding the Petitioner's relationship with S-, concluding 
the affiliation agreement between the two entities qualified under the regulation as a "formal written 
affiliation agreement." The Director discussed a letter authored by one of S-'s directors, who asserted 
that S- placed three students with the Petitioner for the purpose of receiving practical training in the 
years 2019 through 2022. The Director determined that without more, the Petitioner had not 
demonstrated that there is an active working relationship between the entities for the purposes of 
research or education, or that a fundamental activity of the Petitioner's organization is to directly 
contribute to S-' s research or education mission. Id. 
The Director denied the petition, concluding that the Petitioner did not show that its organization is 
exempt from the H-lB cap pursuant to 8 C.F.R § 214.2(h)(8)(iii)(F)(2)(iv), or that an H-lB cap visa 
is otherwise available to the Beneficiary. See 8 C.F.R § 214.2(h)(8)(ii)(B). 
On appeal, the Petitioner maintains that it has submitted evidence sufficient to show that it is exempt 
from the H-lB cap as an affiliated nonprofit through its agreements with [S-] and [N-], and that the 
Director erred in determining otherwise. For instance, the Petitioner contends on appeal that the 
Director erred in concluding that the affiliation agreements and the letter from S- were insufficient to 
establish that the entities enjoy an "an active working relationship ... for the purposes of research or 
education ... ," as required by 8 C.F.R § 214.2(h)(8)(iii)(F)(2)(iv). In the previously submitted letter, 
S- explains: 
By placing our graduate students [ with the Petitioner] for their fieldwork practicum, 
our students learn "hands-on" practical public health skills addressing emerging health 
issues in often complex multi-cultural settings .... We have held a Site Affiliation 
Agreement with [the Petitioner] since 2019 for this purpose. We have placed three of 
our MPH students at [the Petitioner], whose information is as follows: 
• Fall2019-[J-J-] 
• Fall 2021 - [N-D-] 
• Spring 2022- [J-T-] 
In denying the petition, the Director noted that the Petitioner did not provide adequate documentary 
evidence to show it was actively involved in providing training or education to S-' s students. Based 
on our review, it appears that evidence in the record may not be sufficient to substantiate important 
aspects of the training programs outlined in the submitted affiliation agreements. For instance, the 
Petitioner has not provided documentary evidence beyond the letter to show that individuals who are 
enrolled in a program of study with S-, have been placed with the Petitioner to perform fieldwork, the 
nature of the tasks or responsibilities that were assigned to them by Petitioner, and the duration of their 
fieldwork activities. This lack of documentary evidence about the placement of S-' s students with the 
Petitioner raises critical questions regarding whether the Petitioner has an active relationship with S-
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that directly contributes to S-' s research or education mission, which the Director should consider and 
address on remand. Id. In evaluating the evidence, eligibility is to be determined not by the quantity 
of evidence alone but by its quality. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The Petitioner also asserts on appeal that the Director did not adequately consider submitted material 
about the activities that the Petitioner performs for N-, based on their contractual agreements. For 
instance, the Petitioner alleges that the Director concluded in the denial that the extent of the 
Petitioner's contractual services for N- was limited to "submit[ting] tracking data once a month for 
monthly reporting; participat[ing] in monthly meetings; respond[ing] to ad hoc reporting requests." 
The Petitioner points to previously submitted evidence which the Director may have overlooked 
regarding the Petitioner's relationship with N-, such as the statements of work that outline services 
that the Petitioner provided in support of a "COVID-19 Disparities" project in collaboration with N­
to "promote inclusion of priority populations in COVID-19 clinical trials," which involved 
"inform[ing] strategies to build trust and address misinformation; provide input on cultural tailoring 
of materials; and support reach and engagement to increase education, acceptability and uptake of 
COVID-19 vaccination in the communities that they serve." We agree with the Petitioner that the 
Director's decision did not adequately discuss the collective evidence provided in support of the 
Petitioner's assertions about its relationship with N-. We therefore are remanding the case to the 
Director for further review and to provide a sufficient explanation regarding why the evidence relating 
to the Petitioner's relationship with N- is insufficient so that the Petitioner more fully understands the 
Director's concerns. 
Additionally, even if the Director ultimately determines that the Petitioner meets the requirements at 
8 C.F.R § 214.2(h)(8)(iii)(F)(2)(iv), she should also determine whether the record demonstrates that 
the Beneficiary's proposed employment with the Petitioner meets the requirements at 8 C.F.R § 
214.2(h)(8)(iii)(F)( 4), which provides: 
An H-lB beneficiary who is not directly employed by a qualifying institution, 
organization or entity identified in section 214(g)(5)(A) or (B) of the Act shall qualify 
for an exemption under such section if the H-lB beneficiary will spend the majority of 
his or her work time performing job duties at a qualifying institution, organization or 
entity and those job duties directly and predominately further the essential purpose, 
mission, objectives or functions of the qualifying institution, organization or entity, 
namely, either higher education, nonprofit research or government research. The 
burden is on the H-lB petitioner to establish that there is a nexus between the duties to 
be performed by the H-lB beneficiary and the essential purpose, mission, objectives 
or functions of the qualifying institution, organization or entity. 
The Petitioner indicates that the Beneficiary will perform the following job duties: 
[The Beneficiary] will work under the supervision of [1-'s] licensed clinical social 
worker to provide case management, referral services, evaluation of psychological and 
social needs, and development of individually tailored case plans for services. She will 
develop, direct, coordinate and implement a wide range of activities tailored to meet 
the specific needs and interests of the elderly and will be responsible for coordinating 
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and directing the day-to-day administration of various activities and programs designed 
to meet the needs of the aging population .... 
The Director did not specifically address this important aspect in denying the petition, or in her RFE 
and NOID. Moreover, the Petitioner has not provided evidence sufficient to explain how the 
Beneficiary in performing the duties of the proffered position "will spend the majority of[her] work 
time performing job duties at a qual[fj;ing institution, organization or entity and those job duties 
directly and predominately further the essential purpose, mission, objectives or fimctions of the 
qual[fj;ing institution" as required by 8 C.F.R § 214.2(h)(8)(iii)(F)(4). Therefore, the Director should 
review the record to decide if the Petitioner has adequately demonstrated the requisite nexus between 
the Beneficiary's proposed employment and the essential purpose, mission, objectives ofa qual[fj:ing 
institution. Id. 
We withdraw the Director's decision and remand the matter for further review and entry of a new 
decision. On remand, the Director should review all evidence submitted to date (including the brief 
submitted on appeal) and analyze the Petitioner's contentions and evidence to determine if the 
Petitioner is exempt from the H-lB cap pursuant to 8 C.F.R § 214.2(h)(8)(iii)(F), or that an H-lB cap 
visa is otherwise available to the Beneficiary. 8 C.F.R § 214.2(h)(8)(ii)(B). The Director may request 
any additional evidence considered pertinent to the new decision. As such, we express no opinion 
regarding the ultimate resolution of this case on remand. 
III. CONCLUSION 
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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