remanded H-1B Case: Software Consulting

identifying data deleted to 
prevent clearly unw ar rd 
invasion of persod privacy 
pqJBLlC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 057 50347 Office: TEXAS SERVICE CENTER Date: 2 5 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 10 l(a)(l 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 04 057 50347 
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DISCUSSION: The nonimmigrant visa petition was approved by the service center director. Based upon 
information obtained from the Student Control Division of the Citizenship and Immigration Services (CIS) in 
Philadelphia, PA, the director determined that the beneficiary was not clearly eligible for the benefit sought. 
Accordingly, the director served the petitioner with notice of her intent to revoke approval of the visa petition and 
her reasons therefore, and ultimately revoked the approval of the petition. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The decision of the director will be withdrawn and the petition 
will be remanded for the director to reopen on service motion. 
The petitioner is a software consulting business that seeks to employ the beneficiary as a software trainer. The 
petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty occupation pursuant to 
$ I0 l (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 l(a)(l 5)(H)(i)(b). The 
director determined the petitioner had not established that the beneficiary is eligible for a change of nonimmigrant 
status from F- 1 to H- 1 B. 
The record indicates that the petitioner did not respond to the director's July 2, 2004 Notice of Intent to 
Revoke. The director therefore revoked approval of the petition. On appeal, counsel submits a brief. 
The record of proceeding before the AAO contains: (1) the approved Form 1-129 and supporting 
documentation; (2) the director's notice of intent to revoke (NOIR); (3) the director's October 19,2004 notice 
of revocation; (4) a July 2, 2004 CIS motion to reopen (MTR), including a final revocation of the instant 
petition; and (5) Form I-290B and supporting documentation. The AAO reviewed the record in its entirety 
before issuing its decision. 
On December 18, 2003, the petitioner filed Form 1-129 to employ the beneficiary in the H-1B visa category 
for the period December 15, 2003 to December 14, 2006. The petitioner's submission of the Form 1-129 
constituted both a request to classify the beneficiary as an H-1B temporary employee under 
8 C.F.R. $ 214.2(h)(2) and for an extension of the beneficiary's stay in the United States under 
8 C.F.R. $ 214.2(h)(15), with the director required to make a separate determination regarding each. 
See 8 C.F.R. $ 214.2(h)(15). The director approved the Form 1-129 on December 29, 2003, granting H-1B 
classification to the beneficiary, as well as an extension of stay. 
On July 2, 2004, the director notified the petitioner of her intent to revoke the approval of the petition based 
on the Philadelphia CIS office's denial of the beneficiary's request for reinstatement to student status and its 
subsequent affirmation of the denial in response to the beneficiary's motion to reopen and reconsider. The 
director subsequently revoked the petition in a CIS MTR dated October 19, 2004. The AAO notes that this 
decision revoked not only the beneficiary's extension of stay but also the director's decision to classify the 
beneficiary as an H- 1 B temporary employee. 
The director's decision to revoke the beneficiary's extension of stay will not be considered by the AAO. 
Pursuant to 8 C.F.R. $ 2 14.1 (c)(5), there is no appeal from the denial of an application for extension of stay filed 
on a Form 1-129. The only issue before the AAO is whether the director appropriately revoked the approval of 
the H-1B petition. 
The AAO now turns to the basis for the director's denial - the Philadelphia CIS office's denial of the 
beneficiary's request for reinstatement to student status and its subsequent affirmation of the denial in 
response to the beneficiary's motion to reopen and reconsider - and whether these actions provided the director 
SRC 04 057 50347 
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with grounds for revoking the approval of the H-1B petition under the language at 8 C.F.R. 9 214.2(h)(l l)(iii)(A), 
the regulation outlining the circumstances under which a Form 1-129 petition's validity will be rescinded. 
Pursuant to 8 C.F.R. 9 214.2(h)(l l)(iii)(A), a director shall issue a notice of intent to revoke an approved 
Form 1-129 petition if he or she finds that: 
(I) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving 
training as specified in the petition; or 
(2) The statement of facts contained in the petition was not true and correct; 
or 
(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101(a)(15)(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. 
In her July 2, 2004 NOIR, the director stated that the proposed revocation of the petition under 
8 C.F.R. 8 214.2(h)(1 l)(iii)(A) was based on the Philadelphia CIS office's denial of the beneficiary's request 
for reinstatement to student status and its subsequent affirmation of the denial in response to the beneficiary's 
motion to reopen and reconsider. She did not indicate that any other issues influenced her decision, and the AAO 
finds the record to raise no other issues that relate to the director's revocation decision. Accordingly, as the 
director has not questioned the nature of the petitioner's proffered employment or any of the information it 
provided concerning the beneficiary's qualifications, the AAO will not conduct a de novo analysis of the duties of 
the proffered position or the beneficiary's qualifications to perform those duties under the regulatory framework 
set forth at 8 C.F.R. $8 214.2(h)(4)(iii)(A) and (C). Instead, it will focus its review on the extent to which the 
Philadelphia CIS office's denial of the beneficiary's request for reinstatement to student status and its 
subsequent affirmation of the denial in response to the beneficiary's motion to reopen and reconsider provided 
the director with a basis for revoking the petition under the grounds at 8 C.F.R. 8 214.2(h)(l l)(iii)(A). 
As discussed above, CIS is authorized to revoke H-IB petitions approved in error or on the basis of incorrect 
information. Revocation is also justified if the conditions under which CIS approved the H-1B petition have 
altered, either because of a change in the beneficiary's employment or because the petitioner violated the 
language of section 101(a)(15)(H) of the Act, 8 U.S.C. 9 1 101(a)(15)(H), or 8 C.F.R. §214.2(h), or the terms of 
the approved H-1B petition. A review of the NOIR indicates that the director revoked her approval of the instant 
petition based on her determination that the Philadelphia CIS office's denial of the beneficiary's request for 
reinstatement to student status, and its subsequent affirmation of the denial in response to the beneficiary's 
motion to reopen and reconsider, had stripped him of a lawful status. Accordingly, she found the beneficiary to 
have failed to maintain a valid nonimmigrant status and CIS to have erred in approving the instant petition. The 
AAO finds the Philadelphia CIS office's denial of the beneficiary's request for reinstatement to student status 
and its subsequent affirmation of the denial in response to the beneficiary's motion to reopen and reconsider 
SRC 04 057 50347 
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insufficient to support a revocation of the director's approval of the H-1B petition under 
8 C.F.R. 5 214.2(h)(l l)(iii)(A). 
The Philadelphia CIS office's denial of the beneficiary's request for reinstatement to student status, which 
occurred on September 2, 2003, and its subsequent affirmation of the denial in response to the beneficiary's 
motion to reopen and reconsider, which occurred on May 7, 2004, do not, in themselves, satisfy any of the 
regulatory requirements for revocation of an H-1B petition, nor does the AAO find these actions to have resulted 
in any circumstances that would allow for revocation of the petition's validity. They did not alter the employment 
relationship between the petitioner and beneficiary, as required for revocation under the first criterion at 
8 C.F.R. 5 214.2(h)(l l)(iii)(A). At the time the director revoked the instant petition, the beneficiary was still 
employed in the same specialty occupation by the same employer. The Philadelphia CIS office's denial of the 
beneficiary's request for reinstatement to student status and its subsequent affirmation of the denial in 
response to the beneficiary's motion to reopen and reconsider did not result in a finding that the information 
provided on the Form 1-129 at the time of filing was untrue or incorrect, the basis on which revocation is 
authorized under the second criterion. The Philadelphia CIS office's denial of the beneficiary's request for 
reinstatement to student status and its subsequent affirmation of the denial in response to the beneficiary's 
motion to reopen and reconsider did not indicate that the petitioner had committed any violations with regard to 
the conditions of the Form 1-129 or of related law or regulation, the third and fourth criteria allowing for 
revocation. Nor did they establish that CIS had erred or violated its own regulations in approving the petitioner's 
H-1B petition on December 29,2003. The adjudication of the H-1B petition considered whether the employment 
offered by the petitioner was in a specialty occupation and the qualifications of the beneficiary to perform that 
employment. It did not rest on any determination regarding the beneficiary's reinstatement to student status. As a 
result, the AAO concludes that the Philadelphia CIS office's denial of the beneficiary's request for 
reinstatement to student status and its subsequent affirmation of the denial offers no basis on which to revoke 
the approval of the H-IB petition. It finds the director to have erred in revoking the petition. As indicated above, 
that regulation may only be used to revoke the validity of the petition. Thus, the director's decision revoking the 
petition based on the beneficiary's failure to maintain status will be withdrawn. 
In this case, the petition may not be approved because, at the time of filing, the beneficiary was ineligible for a 
change of status under 8 C.F.R. 5 248. Pursuant to 8 C.F.R. fj 248.3(g), there is no provision for an appeal from 
the denial of a change of status. As this office does not have jurisdiction over the director's decision regarding the 
beneficiary's request for a change of status, the matter will be remanded to the director. It is also noted that the 
beneficiary is inadmissible for misrepresenting material facts under $5 2 12(a)(6)(C)(i) and (7)(B)(i)(II) of the 
Act. For the reasons discussed above, the decision of the director will be withdrawn and the petition will be 
remanded for the director to reopen on service motion. The director may request any additional evidence she 
deems necessary, allowing the petitioner to provide additional documentation within 30 days. Upon receipt of 
all evidence and representations, the director will enter a new decision. 
ORDER: The decision of the director is withdrawn. The matter is remanded to her for further action and 
consistent with the above discussion and entry of a new decision, which, if adverse to the 
petitioner, is to be certified to the AAO for review.