remanded H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 04, 2025 In Re: 36698300 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-1B) 
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. § 110l(a)(l5)(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 Director of the Texas Service Center denied the petition, concluding that the Petitioner was 
ineligible to file an H-lB petition because the record did not establish that the Petitioner possessed a 
valid, properly submitted H-lB registration for the Beneficiary. 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, USCIS 
has instituted the registration requirement contained at 8 C.F .R. § 2 l 4.2(h)(8)(iii)(A)(l). 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. lfUSCIS 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). 
II. ANALYSIS 
The Petitioner, a software development and consulting company, appeals the Director's denial of the 
petition and the related finding of fraud. Upon de novo review, we conclude that the denial of the 
petition, based upon the evidence that the Petitioner worked with another entity to unfairly increase 
the chances of the Beneficiary's selection in the H-lB registration process and therefore lacked a 
properly submitted H-1 B registration, will stand. However, we also conclude that the Director did not 
sufficiently articulate the finding of fraud based upon this denial ground. 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. 
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 the issuance of a 
notice of intent to deny (NOID) and consideration of the Petitioner's response, the Director denied the 
petition with a finding of fraud. Specifically, the Director found 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 and that it therefore falsely certified the attestation made in 
the submission of its H-lB registration. 1 The Director stated that this conclusion was based upon 
USCIS records which show that the Petitioner and I I are related through familial 
relationships, share the same office address, and that the two companies submitted overlapping H-lB 
registrations for 19 individuals. The Director therefore found that the Petitioner did not establish that 
the registration was properly submitted in accordance with the regulation and form instructions that it 
was therefore not eligible to file an H-lB petition pursuant to 8 C.F.R. § 214.2(h)(8)(iii)(A)(l). 
On appeal, the Petitioner submits a brief and additional evidence. The Petitioner acknowledges that 
it and I lare related entities in that the president and signatory ofl lserves as 
the Chief Technology Officer of the Petitioner and is married to the president and signatory of the 
Petitioner. The Petitioner also acknowledges that the two companies share the same office address 
but operate out of separate suites at this address. The Petitioner contends, however, that 8 C.F.R. 
§ 214.2(h)(2)(i)(G), as well as our adopted decision in Matter ofS-, Adopted Decision 2018-02 (AAO 
Mar. 23, 2018), permits the filing of multiple H-lB registrations by related entities so long as there is 
a legitimate business need for the multiple registrations. 
We agree with the Director that the Petitioner's evidence and arguments do not overcome the concerns 
regarding the submission of the multiple H-lB registrations. First, we note that the regulation at 
8 C.F.R. § 214.2(h)(2)(i)(G) and our adopted decision in Matter ofS- relate to the filing multiple H-lB 
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." 
2 
petitions by related entities, not the submission of multiple H-lB registrations. This regulation permits 
related entities to file multiple H-1 B petitions on behalf of the same beneficiary in the same fiscal year 
only if the related entities demonstrate "a legitimate business need" for each of the petitions. The 
Petitioner has not established that this regulation or this adopted decision are relevant in the 
determination of whether the filing of the multiple H-lB registrations was proper or whether the 
Petitioner falsely certified the attestation that it made in the submission of its registrations. 
Second, even were we to assume that our adopted decision in Matter ofS- is applicable to the instant 
matter, we note that the Petitioner has not established that both related entities have a legitimate 
business need as defined in that decision. We concluded in Matter ofS- that establishing a legitimate 
business need requires an examination of "the underlying job opportunity made by each petitioner," 
and that "[ e Jach job opportunity must be bona fide, be available to the beneficiary, and be materially 
distinct." We further stated that the related entities "cannot be offering essentially the same job 
opportunity to the beneficiary." 
While the Petitioner asserts that it has a bona fide job opportunity for the Beneficiary and that it and 
I I have "distinct and separate" clients and product lines, the Petitioner did not submit 
sufficient documentation to establish that its job opportunity and I I are materially 
distinct. The Petitioner provided information regarding its products and services and the Beneficiary's 
job description, but did not provide evidence as to how its job opportunity is materially distinct from 
the opportunity that was the basis for the submission of H-lB registration. 
Additionally, although it provided information and evidence regarding its hiring process, the Petitioner 
did not provide a sufficient explanation for why each of the individuals for whom it submitted H-1 B 
registrations also had H-1 B registrations submitted by I I on their behalf. 
The Petitioner and are related entities that share the same office address and that filed 
overlapping H-lB registrations for 19 individuals. Further, the Petitioner has not provided a sufficient 
explanation for the filing of these multiple overlapping registrations. For these reasons, the Petitioner 
has not established that it has a legitimate job offer and has not established that it did not work with 
another entity to submit a registration to unfairly increase chances of selection for the Beneficiary. 
Therefore, it has not established that its registration was properly submitted. 8 C.F.R. 
§ 214.2(h)(8)(iii)(A)(l). Without a properly submitted registration, the denial of the H-lB petition 
was proper. See id. 
Nevertheless, we conclude that a remand is warranted in this matter because the Director did not 
sufficiently articulate a basis to support the related 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 ofTijam, 22 I&N Dec. 408, 425 (BIA 1998); 
Matter of Healy 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, 537 (BIA 1980). 
3 
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 denial of the petition remains undisturbed. However, we withdraw the Director's 
finding of fraud and remand the matter to the Director for proper analysis of this issue. 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. 
4