remanded H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 10, 2025 In Re: 35523297 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary 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. § 1101(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 Director of the Texas Service Center revoked the approval of the petition with a finding of material 
misrepresentation, concluding that the Petitioner did not rebut the evidence that showed that the 
Petitioner worked with another entity to unfairly increase the chance of the Beneficiary's selection in 
the H-lB registration process. 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, U.S. 
Citizenship and Immigration Services (USCIS) has instituted the registration requirement contained 
at 8 C.F.R. § 214.2(h)(8)(iii)(A)(i) . 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. IfUSCIS 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). 
Moreover, USCIS may revoke the approval of an H-lB petition pursuant to 8 C.F.R. 
§ 214.2(h)(l 1 )(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: 
(1) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition ... ; or 
(2) The statement of facts contained in the petition or 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. 
The regulations require that USCIS provide notice consisting of a detailed statement of the grounds 
for revocation of the petition approval and provide an opportunity for the petitioner to respond to the 
notice of intent to revoke. 8 C.F.R. § 214.2(h)(l l)(iii)(B). 
II. ANALYSIS 
The Petitioner filed the underlying petition on behalf of the Beneficiary seeking new employment and 
requesting consideration under the H-1 B numerical limitation (H-1 B cap). After initially approving 
the petition, the Director notified the Petitioner ofUSCIS' intent to revoke the approval of the petition, 
with a finding that the Petitioner made a material misrepresentation, through a notice of intent to 
revoke (NOIR). The Director concluded that the Petitioner's response to the NOIR did not sufficiently 
rebut the derogatory information and accordingly revoked the petition's approval with a finding of 
material misrepresentation. The Petitioner now appeals the Director's revocation of the petition's 
approval. 
Upon de novo review, we conclude that the Director did not sufficiently articulate the grounds to 
revoke the petition based upon the Petitioner's potential collusion with another entity to unfairly 
increase the chances of the Beneficiary's selection in the H-lB registration process or the related 
finding of material misrepresentation. For that reason, we will withdraw the Director's finding of 
2 
material misrepresentation and remand the matter for entry of a new decision consistent with the 
analysis below. 
The Director advised the Petitioner in the NOIR that it appeared that the Petitioner worked with 
another entity to submit multiple H-lB registrations to unfairly increase the chances of selection for 
the Beneficiary, and that it therefore falsely certified the attestation made in the submission of its H-1 B 
registration. 1 Specifically, the Director asserted that the Petitioner is related to and worked with 
another company, I I to file multiple registrations for the 
Beneficiary to unfairly increase the chances of selection. The Director stated that this conclusion was 
based upon users records which show that the Petitioner and I I both used the same IP address 
to submit their H-1 B cap registrations, that both companies used the same individual as their 
authorized signatory on these submissions, that the authorized signatory used the same phone number 
for both companies, and that the companies have 68 overlapping registrations between them, including 
for the Beneficiary in this matter. Based upon this information, the Director further advised the 
Petitioner that users determined that the multiple cap registrations submitted by these companies for 
the Beneficiary contain a willful misrepresentation of a material fact made to a users official with 
the intent to deceive for the purposes of obtaining an immigration benefit, and therefore the Director 
intended to revoke the petition approval with a finding of material misrepresentation. 
The Petitioner responded to the NOIR, acknowledging that I I is a related entity and that the 
companies use the same authorized signatory for its H-lB registrations. The Petitioner asserted, 
however, that the fact of a corporate affiliation between two entities that both file an H-1 B registration 
for the same beneficiary is not sufficient to demonstrate willful misrepresentation, fraud, an intent to 
deceive, or collusion. The Petitioner pointed to the regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) which 
permits the filing of multiple H-lB petitions by related entities in the same fiscal year, so long as there 
is a legitimate business need for the multiple filings. The Petitioner asserted that both it and I 
have legitimate business needs for the software engineer position that was offered to the Beneficiary 
and was the basis for the multiple H-lB registrations. The Petitioner stated that the attestation it made 
in submitting the H-lB registration for the Beneficiary was therefore true and correct. Accordingly, 
the Petitioner asserted that there is no basis in law for the revocation of the approval. 
The Director concluded that the response was insufficient. The Director acknowledged the 
Petitioner's claim that both it and I !submitted their registrations based upon legitimate business 
needs, but stated that "[t]here is no allowance within users regulations for related companies to 
submit multiple H-lB registrations for the same beneficiary, regardless of legitimate business needs 
and bona fide job offers." The Director concluded that, because the evidence shows that the Petitioner 
and I I are related entities with shared human resources functions, this was sufficient to 
demonstrate that the two organizations worked together to submit multiple registrations for the same 
beneficiary to unfairly increase the chances of selection for that beneficiary, and therefore willfully 
misrepresented a material fact. Regarding the regulation at 8 C.F.R. § 214.2(h)(2)(i)(G), the Director 
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." 
3 
I 
concluded that this regulation is inapplicable to the filing of multiple H-lB registrations by related 
entities, because it only pertains to the filing of multiple H-lB petitions by related entities. 
On appeal, the Petitioner submits a brief and an additional affidavit from a human resources employee. 
The Petitioner repeats on appeal its contention that because the regulations permit the filing of multiple 
H-lB petitions by related entities whether there is a legitimate business need, there must be the same 
allowance for registrations. The Petitioner also maintains that there was no misrepresentation because 
it did not seek to unfairly increase the Beneficiary's chance of selection and that it acted in good faith 
based on its reasonable understanding of the attestation at the time of the registration submission. 
In the affidavit submitted on appeal, the human resources employee states that the Petitioner was 
advised by immigration counsel to file the 68 overlapping H-lB registrations for "each candidate 
under both [ the Petitioner] and I I although initially the Petitioner had planned that onlyl I 
would submit these H-lB registrations, and not both entities. The employee states that previously, it 
would submit H-lB registrations "for candidates under eitherl Ior [the Petitioner], not both." 
We are sympathetic to the Director's concerns regarding the submission of these H-lB registrations. 
The Petitioner and I I submitted 68 overlapping registrations, are related entities, and have stated 
that they knowingly submitted the common registrations including the one in this matter. 
Additionally, while not part of the record considered by the Director, the affidavit submitted on appeal 
does not support the conclusion that the Petitioner andl leach had 68 separate, legitimate job 
offers, but rather that the entities had a total of 68 job opportunities between them. This, in tum, 
undermines the Petitioner's claim that each of the overlapping registrations were based on legitimate 
job offers. 
Nevertheless, we conclude that a remand is warranted in this matter because the Director did not 
provide sufficient notice of the specific grounds for revocation based upon this information. Instead, 
the Director reminded the Petitioner of the website instructions for the H-1 B registration process, the 
attestation made in the submission of the H-lB registration, and the regulation at 8 C.F.R. 
§ 103 .2( a)( 1) which requires that every benefit request be submitted in accordance with the form 
instructions. 2 
But the revocation regulations require that the Director provide a petitioner a detailed statement of the 
specific grounds for revocation. 8 C.F.R. § 214.2(h)(l l)(iii)(A) and (B). We conclude that the 
Director has not done so here. Although the Director reminded the Petitioner of the attestation that it 
certified in submitting its H-lB registrations, the Director did not sufficiently notify the Petitioner of 
the grounds for revocation under 8 C.F.R. § 214.2(h)(l l)(iii)(A) and (B), for example, that the 
approval of the petition violated the requirements of section 10l(a)(15)(H) of the Act or paragraph (h) 
of 8 C.F.R. § 214.2 or that it involved gross error. 
2 At the time of submission, the H-1 B registration instructions stated that: "TfUSCTS 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 chances of selection for that beneficiary), USCTS will find that registration to not be 
properly submitted. Since the registration was not properly submitted, the prospective petitioner would not be eligible to 
file a petition based on that registration in accordance with the regulatory language at 8 CFR § 214.2(h)(8)(iii)(A)(l). 
USCIS may deny or revoke a petition based on a registration that contained a false attestation and was therefore not 
properly submitted. 
4 
Additionally, the Director did not sufficiently consider the Petitioner's response to the NOIR in 
deciding whether to revoke the petition, as required by 8 C.F.R. § 214.2(h)(l l)(iii)(B). In response to 
the NOIR, the Petitioner did not contest that it shares human resource functions with a related entity 
and that this human resource department knowingly submitted registrations by both entities on behalf 
of the Beneficiary. Because the Director interprets the attestation to entirely prohibit related entities 
from submitting multiple registrations for the same beneficiary, regardless of the existence of 
legitimate job offers or legitimate business needs, the Director concluded that this was a sufficient 
basis for finding the attestation falsely certified and for the revocation of the petition. But the Director 
did not sufficiently respond to the Petitioner's claim that it understood that it was truthfully certifying 
the attestation because both it andl had legitimate job offers. On remand, the Director should 
consider the Petitioner's claim and whether the evidence in the record supports it. 
Similarly, we note that in the revocation notice the Director mischaracterizes the language of the 
registration attestation. For example, the Director states that the attestation provides the legal basis 
for a denying petition if multiple H-1 B registrations are submitted for the same beneficiary "by related 
companies, even if there is a legitimate business need and separate, bona fide job offers." But the 
attestation does not discuss registrations by related companies, nor does it specifically prohibit the 
filing of multiple registrations "even if there is a legitimate business need and separate, bona fide job 
offers;" rather, it prohibits entities from working together to file multiple registrations for the same 
beneficiary for the purpose of "unfairly increasing the chances of the beneficiary's selection." In 
another instance, the Director characterizes the "issue at hand" as whether the Petitioner worked with 
another company "to increase the chances of a beneficiary's selection," rather than working with 
another company to unfairly increase the chances of a beneficiary's selection. Where the intended 
basis of the revocation is that the Petitioner falsely certified an attestation, the specific language to 
which the Petitioner attested is critical. 
Separately, we also conclude that the Director did not sufficiently articulate a basis to support the 
finding of material misrepresentation. 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 of Tijam, 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 of Ng, 
17 I&N Dec. 536, 537 (BIA 1980). 
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. 
5 
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 material 
misrepresentation. Although the Director discussed the framework above, the Director did not 
sufficiently apply the facts of the instant matter to each of the required elements. Specifically, the 
Director did not sufficiently explain how they determined that a misrepresentation was willfully made. 
The Director concluded that the misrepresentation was willful because the Petitioner "knew that the 
registration was based on a false attestation." But the Petitioner contended in its NOIR response, and 
claims again on appeal, that it did not intend to make any misrepresentation, that it was the 
understanding of the Petitioner that it was truthfully certifying the attestation, and that its interpretation 
of the attestation was reasonable. The Director does not sufficiently explain how the record establishes 
that the Petitioner did, contrary to its claim, intend to make a misrepresentation and that it understood 
that it was willfully misrepresenting facts in certifying the attestation. Therefore, we will withdraw 
the Director's finding of material misrepresentation. 
III. CONCLUSION 
The Director's revocation of the previously approved petition based upon the finding that the 
Petitioner worked with another entity or entities to submit multiple H-lB registrations to unfairly 
increase the chances of selection for the Beneficiary is withdrawn, as is the finding of material 
misrepresentation based upon this ground. The Director may choose to consider our observations as 
they evaluate the record. And if appropriate the Director may issue a NOIR that sufficiently articulates 
a ground or grounds to revoke the petition. 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. 
6