remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 20, 2025 In Re: 36471149 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
The Petitioner, a software development and consulting organization, seeks to temporarily employ the 
Beneficiary as a software developer under the H-1 B nonirnrnigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to file a petition with U.S. 
Citizenship and Immigration Services (USCIS) 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 initially approved the Form 1-129, Petition for a Nonimmigrant 
Worker (petition), then revoked the approval after issuing a notice of intent to revoke (NOIR). In the 
revocation, the Director concluded that the record did not establish that the Beneficiary is employed 
in the capacity specified in the petition, the factual statements in the approved petition were true and 
correct, and that the Petitioner did not actually have a bona fide position available for the Beneficiary 
and it committed fraud. 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. REVOCATION AUTHORITY 
USCIS may revoke the approval of an H-1B petition pursuant to 8 C.F.R. § 214.2(h)(ll)(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: 
(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 pet1t10n or on 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. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for 
the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 
30 days of receipt of the notice. The director shall consider all relevant 
evidence presented in deciding whether to revoke the petition in whole or in 
part .... 
II. ANALYSIS 
USCIS records reflect that the Director 
issued an approval notice specific to the underlying petition, 
but following this notice, issued a NOIR. The Director indicated in the NOIR that the U.S. Department 
of State consular post had informed USCIS that during the visa interview the Beneficiary named the 
end-client and location where he will work in the United States, but the end-client was contacted and 
could not confirm the Beneficiary's employment. Based on that information, the Director issued a 
NOIR but the Petitioner failed to respond and the Director revoked the petition's approval of the 
petition pursuant to 8 C.F.R. § 214.2(h)(l l)(iii)(A)(]) and (2), and determined that the record did not 
establish there is a bona fide job offer and made a finding of fraud. 
We conclude that the Director did not properly analyze and explain the grounds of revocation under 
8 C.F .R. § 214.2(h)(l 1 )(iii) and the finding of fraud to allow the Petitioner a fair opportunity to contest 
the decision on appeal. Cf.Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that the reasons for 
denying a motion must be clear to allow the affected party a meaningful opportunity to challenge the 
determination on appeal). The Director may wish to refer to USCIS Policy Manual's section on Fraud 
and Willful Misrepresentation to provide analysis to make a finding of fraud. USCIS Policy Manual, 
available at https://www.uscis.gov/policy-manual. 
To make a finding of willful misrepresentation of a material fact in visa petition proceedings, an 
immigration officer must determine: 1) that the petitioner or beneficiary made a false representation 
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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 Matter ofM-, 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. 288 (BIA 1975). 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes 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. at 289-90. 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 
alien's eligibility, and which might well have resulted in a proper determination that he be excluded." 
Matter ofNg, 17 I&N Dec. 536,537 (BIA 1980). 
In addition, a finding of fraud against a petitioner or beneficiary requires the following elements: 
• The petitioner or beneficiary procured, or sought to procure, a benefit under U.S. 
immigration laws; 
• The petitioner or beneficiary made a false representation; 
• The false representation was willfully made; 
• The false representation was material; 
• The false representation was made to a U.S. government official, generally an 
immigration or consular officer; 
• The false representation was made with the intent to deceive a U.S. government official 
authorized to act upon the request (generally an immigration or consular officer); and 
• The U.S. government official believed and acted upon the false representation by 
granting the benefit. 
See generally 8 USCIS Policy Manual J.2(C), https://www.uscis.gov/policymanual. 
Here, the Director's decision did not sufficiently discuss the nature of the findings of willful 
misrepresentation and fraud against the Petitioner and were not supported by sufficient analysis of the 
critical factors listed above. An officer must fully explain the reasons for denying a visa petition to 
allow the Petitioner a fair opportunity to contest the decision and to allow us an opportunity for 
meaningful appellate review. 
On appeal, the Petitioner explains that the Petitioner has a contract with a vendor who in tum will 
work with the end-client. The Petitioner resubmitted an agreement between the Petitioner and the 
vendor and an agreement between the vendor and the end-client. The Petitioner states that "no 
contractual arrangement existed" between the Petitioner and the end-client and contends that there is 
no reason for the end-client to be aware of the Petitioner's employee assigned to the vendor to work 
on the project with the end-client prior to commencing H-lB employment. Since the Petitioner 
provides further clarification on appeal, a remand is further warranted for the Director's review of the 
documents since they are material to the concerns raised by the consular post. 
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III. CONCLUSION 
The Director's revocation of the petition's approval is withdrawn, and the matter is remanded for 
further action. The Director may request any additional evidence considered pertinent to the new 
determination. 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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