remanded H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 30, 2024 In Re: 34691705 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
The Petitioner, a consulting and software development organization, seeks to temporarily employ the 
Beneficiary as a senior software engineer under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ l 101(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 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) 
concluding that the record did not establish that the Petitioner's factual statements in the approved 
petition were true and correct, it committed fraud within those statements, and it did not actually have 
a bona fide position available for the Beneficiary. The Director further concluded the Petitioner did 
not demonstrate that it had a specialty occupation position immediately available for the Beneficiary. 
On appeal, the Petitioner claims the Director erred in revoking the petition's approval. The matter is 
now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de novo. Matter of Christo '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. REVOCATION AUTHORITY 
USCIS may revoke the approval of an H-lB 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: 
(]) 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 or on the 
application for a temporary labor certification was not trne 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 )(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. 
(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. BACKGROUND 
The Petitioner first filed the required U.S. Department of Labor (DOL) ETA Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA) that it later provided when it filed 
this petition. On both the LCA and the petition, the organization stated the Beneficiary's work location 
would be its own address. 
Accompanying the petition, the Petitioner provided a statement in which they claimed the Beneficiary 
would "be responsible for performance of professional IT service to meet the requirements of client, 
I Ior its clients." The Petitioner discussed a master contractor services agreement contract it 
executed with I "& supporting projects for I I on its various opportunities with their 
clients," and it continued to describe multiple previous projects with that company. And the Petitioner 
closed stating it was filing H-lB petitions to help on those projects and that the petitioning organization 
has "an assurance from I Ileadership to induct these qualified candidates on their current and 
other upcoming projects." It largely restated these claims relating to I Iwhen the Petitioner 
responded to the Director's request for evidence and the Director subsequently approved the petition. 
After the Director approved the petition, USCIS performed an investigation into the petition's claims. 
During that process, anl Irepresentative informed USCIS that they were not expecting the 
Beneficiary to work on any projects. Based in part on that information, the Director issued an NOTR 
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with a finding of fraud as the Petitioner's statement of facts was not true and correct. The Director's 
NOIR specifically alleged thatI I indicated the Beneficiary was not expected to work on a 
project for them or their affiliates. 
The Director also proposed to revoke the approval because the Petitioner violated statutes or 
regulations. The Director indicated the Petitioner must show that the position actually exists and that 
the statute requires the Beneficiary to perform services in a specialty occupation in the United States. 
But because I indicated it had no knowledge of the Beneficiary performing work for one of 
its projects from the Petitioner's work address as described in the petition, the Director concluded the 
petitioning organization did not have a bona fide position available for him. The Director closed the 
NOIR noting that the U.S. Department of State consular post had informed USCIS that the consular 
post could not verify the proposed work at the end-client for the duration the Petitioner requested in 
the petition, and this fact led the Director to decide that the Beneficiary would not perform services in 
a specialty occupation. 
After the Petitioner failed to respond to the NOIR, the Director revoked the petition's approval for the 
same bases it included in the original notice. 
III. ANALYSIS 
First, we address the Director's fraud finding within the revocation decision. In both the NOIR and 
the revocation notice, the Director included a section titled, "Statement of Facts was not True and 
Correct" relating to 8 C.F.R. § 214.2(h)(l l)(iii)(A)(2). The Director indicated they were partly 
revoking the approval because the statement of facts in the petition and the LCA was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact. 
The Director noted the Petitioner's filings reflected the Beneficiary would work at their office address 
on a project forl Ibut that end-client indicated he was not expected to work on any of their 
projects. When the Director closed their revocation decision, they twice indicated the revocation was 
for fraud. We note to support a fraud determination, the record should reflect that the NOIR explained 
how the filing party made a false representation with the intent to deceive a U.S. government official 
authorized to act upon the request. However, the NOIR here did not put the Petitioner on notice of 
that factor. Because of this shortcoming, we will withdraw the finding of fraud and remand the matter 
to the Director to resolve this issue. 
We also highlight an additional aspect of the Director's decision they should ensure is not included in 
any future adverse decision based on these proceedings. To revisit, the Director noted that the U.S. 
Department of State informed USCIS its officers could not verify the proposed work at the end-client 
for the duration the Petitioner requested in the petition, and this was part of the reasoning leading the 
Director to decide that the Beneficiary would not perform services in a specialty occupation. Any 
future analysis should avoid a discussion of the duration oftime the Petitioner requested on the LCA 
and the petition. But that does not affect the Director's broader determination that the Petitioner failed 
to demonstrate it would have bona fide specialty occupation work available for the Beneficiary as it 
stated it would have in the petition. 
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Next, we address a topic that may be a relevant consideration for any decision following this remand. 
The Petitioner alleges their statements of fact on the LeA were true and correct because on the LeA, 
they indicated the Beneficiary would work at their office location and the LCA does not mention 
I I While DOL certifies the LeA, users "determines whether the petition is supported by 
an LCA which corresponds with the petition, whether the occupation named in the labor condition 
application is a specialty occupation ... , and whether the qualifications of the nonimmigrant meet the 
statutory requirements for H-1 B visa classification." 20 e.F.R. § 655. 705(b ). See also Matter of 
Simeio Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). Because the LCA must correspond with 
and support the petition, an LCA submitted in support of a petition in which the petitioning 
organization intends to employ a foreign national to perform specific work for a particular end-client, 
the material claims within the petition can be imputed to the LCA. This is not a situation in which the 
Petitioner submitted an LCAto DOL and never used that certified filing in support of a nonimmigrant 
petition. We therefore agree with the Director that the Petitioner did not demonstrate that its 
statements of fact relating to the LCA were true and correct. 
But even if we agreed with the Petitioner that its statements on the LeA were technically true and 
correct because it contains no provision to identify an end-client, that would not resolve the issue in 
their favor. Recall, the Petitioner presented multiple statements accompanying the petition reflecting 
the purpose for hiring the Beneficiary was to meet I Ineeds. Additionally, the Petitioner 
offered specific information to include it had "an assurance froml !leadership to induct these 
qualified candidates on their current and other upcoming projects." (Emphasis added.) 
This firmly establishes that the work the Petitioner presented to users was for the Beneficiary to 
work onl !related projects and that the petitioning organization secured those commitments 
from I I leadership." And the Petitioner certified under the penalty of perjury that the petition 
and all material submitted with it, either at the time of filing or thereafter, were true and correct. See 
section287(b)oftheAct; 8U.S.e. § 1357(b); 8e.F.R. § 103.2(a)(2);28U.S.e. § 1746; 18U.S.e. § 1621. 
An employer's signature on an immigration form establishes a strong presumption that they know of and 
have assented to the form's contents. 
But according to the Petitioner's own client. I I had no knowledge that the Beneficiary was 
supposed to work on any of their projects. The Petitioner has not demonstrated that both things can be 
true; that the information the organization presented with the petition was true and correct (i.e., it had 
bona fide work available for the Beneficiary-secured through assurances from I I 
leadership-when it filed the petition), but I lwas unaware of such work. 
While the Petitioner is correct that a district court opinion indicated users should not require evidence 
of non-speculative employment for the entire duration of the requested employment period, that 
opinion did not give employers a blank check to list presumptive employment for the petition that may 
or may not come to fruition; not even if the Petitioner had been working with the client in the past. It 
remains that when petitioners file an H-lB petition, they must preponderantly demonstrate they will 
have specialty occupation work available for the identified beneficiary whether the impetus for that 
work is inherently internal or from outside clients. 8 C.F.R. § 103.2(b)(l), (12). users may not 
approve a visa petition at a future date after a petitioner becomes eligible under a new set of facts, for 
instance when it locates qualifying work with a new client other than the one it presents with the 
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pet1t10n. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! eomm'r 1978) (finding that 
nonimmigrant eligibility criteria must be met at the time a petitioner files the petition). 
The fact remains that the Petitioner listed the Beneficiary's beginning date to work on 
I -related projects on October 1, 2022. But, according to USeIS' investigation, and according 
to anl Irepresentative, that entity had no knowledge of the Beneficiary working on any of 
their projects as of more than one year after that date. This demonstrates that it is more likely than not 
that the Petitioner did not have qualifying specialty occupation work available for the Beneficiary 
when it filed the petition. In other words, the Petitioner has not demonstrated eligibility as of the 
petition filing date, which the regulation at 8 e.F.R. § 103.2(b)(l), (12) requires. 
That brings us to the Petitioner's appeal brief in which it states: "Admittedly it was Petitioner's 
speculative judgement of job opportunities" to present the scenario that the Beneficiary would work 
onl lrelated projects. Here, the Petitioner admits it essentially assumed it would have work 
for the Beneficiary to perform on I lrelated projects without any coordination with that 
company to verify the work actually existed. This further calls into question what work the offered 
position would actually consist of, and what duties they expected the Beneficiary to perform that would 
constitute or qualify as a specialty occupation. The result is we are unable to ascertain the position's 
substantive nature, and without that we cannot determine whether it satisfies at least one of the 
specialty-occupation criteria enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). We therefore agree 
with the Director that the Petitioner has not established that it had a bona fide job available for the 
Beneficiary when it filed the petition, and in tum it has not shown the position is a specialty occupation. 
Within the appeal, the Petitioner attempts to explain that I I was possibly unaware of the 
Beneficiary because users contacted the incorrect person or entity within the organization as 
__________ have no clue about the current opportunities within their clients and 
that this is indeed managed by individual accounts. So purposely or wrongfully calling people at 
I Iwho don't have any ideas on the positions will ONLY result in negative or wrong answers." 
We find this line of reasoning unpersuasive. We also note the Petitioner does not offer the correct 
point of contact within I -or within any related organization-who might be able to verify 
that as of October 1, 2022, an I -related entity was aware that the Beneficiary was supposed 
to perform qualifying specialty occupation work on a project. 
And the Petitioner closes out the appeal brief stating that even if Idid not have a specific 
work order for the Beneficiary, the "Petitioner can easily place him to other end clients' projects." 
Here, the Petitioner appears to brush aside its responsibility that it was supposed to demonstrate 
eligibility on the date it filed the petition, and it appears the petitioning organization expects users 
to simply accept their signatory's word that they have work available for a foreign national. 
Except where a different standard is specified by law, a petitioner must prove eligibility for the 
requested immigration benefit by a preponderance of the evidence. Chawathe, 25 I&N Dec. at 375-76 
(AAO 2010). Under the preponderance of the evidence standard, the evidence must demonstrate that 
the petitioner's claim is "probably true." We will examine each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the evidence, 
to determine whether the fact to be proven is probably true. If a petitioner submits relevant, probative, 
and credible evidence that leads us to believe that the claim is "more likely than not" or "probably" 
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true, it has satisfied the standard of proof Stated another way, a petitioner must establish that there is 
greater than a fifty percent chance that a claim is true. 
But the Petitioner has not met that standard here. The Petitioner's unsupported statements (that even 
if it didn't have work for the Beneficiary with I I it could find other work) have little 
evidentiary value and will not make a prima facie eligibility showing, much less satisfy their burden 
of proof See Matter of Mariscal-Hernandez, 28 I&N Dec. 666, 673 (BIA 2022); see also Matter of 
Azrag, 28 I&N Dec. 784, 787 (BIA 2024). To otherwise allow a petitioner to satisfy its responsibilities 
within these proceedings by simply claiming a fact as the truth would undermine the basic tenet that 
the burden of proof comprises both the initial burden of production ( e.g., documents, testimony, etc.), 
as well as the ultimate burden of persuasion ( e.g., establish the degree to which their evidence should 
persuade or convince). Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998); see also Dir., Office 
of Workers' Comp. Programs, Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 274 (1994). 
Such an interpretation would relieve a petitioner of its basic duty to demonstrate eligibility. Section 
291 of the Act, 8 U.S.C. § 1361. As we express within this decision, we will not lower the standard 
of proof in the manner the Petitioner suggests. 
IV. THE RECORD SUPPORTS A MISREPRESENTATION 
OF A MA TERI ALF ACT FINDING 
Generally, establishing a material misrepresentation in the immigration context includes showing the 
presence of several elements, and we observe the record in this case meets the necessary factors to 
show the Petitioner committed such an act. The distinction within the record between the Petitioner 
either committing fraud or a material misrepresentation makes little difference to this case's outcome. 
While there may be one additional element to demonstrate fraud (i.e., the false representation was 
made with the intent to deceive a U.S. government official authorized to act upon the request), both 
that violation and a misrepresentation of a material fact would result in the same outcome in any H-1 B 
case. Stated differently, both a misrepresentation of a material fact and fraud are grounds to revoke 
this petition's approval within 8 C.F.R. § 214.2(h)(iii)(A)(2), as well as a reason to return the H-lB 
cap number to the pool of unused numbers under section 214(g)(3) of the Act, 8 U.S.C. § l 184(g)(3). 
If the Director's NOIR and the revocation decision had only included a finding of a material 
misrepresentation instead of a fraud finding, the record would have supported their revocation of the 
petition's approval. Accordingly, we will remand the matter to the Director to address the issues noted 
above. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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