remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 30, 2025 In Re: 35843038 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner sought 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. § l 10l(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 California Service Center revoked the approval of the petition with a finding of 
fraud, concluding that the Petitioner violated statutory or regulatory requirements as proscribed by 
8 C.F.R. § 2 l 4.2(h)(iii)(A)( 4) because it did not rebut the evidence that showed that it 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa '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. 
Depending on the factual circumstances, U.S. Citizenship and Immigration Services (USCIS) 
regulations provide for the automatic revocation of approved H-lB petitions, as well as for revocation 
on notice after providing a petitioner with notice of the intent to revoke and the opportunity to respond. 
See 8 C.F.R. § 214.2(h)(l 1). In addition, the regulation at 8 C.F.R. § 214.2(h)(l l)(i)(A) requires a 
petitioner to "immediately notify the Service of any changes in the terms and conditions of 
employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and 
paragraph (h) of this section ... If the petitioner no longer employs the beneficiary, the petitioner shall 
send a letter explaining the change(s) to the director who approved the petition." 
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 initially approving 
the petition, the Director notified the Petitioner ofUSCIS' intent to revoke the approval of the petition, 
with a finding of fraud, through a notice of intent to revoke (NOIR). The Director advised the 
Petitioner in the NOIR that USCIS intended to revoke the petition in accordance with 8 C.F.R. 
§ 214.2(h)(l 1 )(iii)(A)( 4) because the Petitioner violated requirements of the statute or regulations 
when it worked with another entity to submit multiple H-lB registrations to unfairly increase the 
chances of selection for the Beneficiary. The Petitioner responded to the NOIR, acknowledging that 
it and a related entity both submitted registrations on behalf of the Beneficiary but asserting that the 
filing of the multiple registrations was proper and based upon legitimate business needs. Following 
the Petitioner's NOIR response, the Petitioner submitted a request to withdraw the petition because 
the Beneficiary was no longer employed with the Petitioner. 
Thereafter, the Director issued a revocation notice pursuant to 8 C.F.R. § 214.2(h)(ll)(iii)(A)(4), 
concluding 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 fraud. Despite making 
this finding, the Director did not offer an analysis addressing each underlying element of fraud. 1 The 
Petitioner now appeals the Director's revocation of the petition's approval. 
Upon de novo review, we conclude that the Petitioner withdrew the petition prior to the Director's 
decision and that the Director erred by not accepting this request. The petition must be deemed 
withdrawn. See 8 C.F.R. § 103.2(b)(6) ("an applicant or petitioner may withdraw a benefit request at 
any time until a decision is issued by USCIS"); see also Matter ofCintron, 16 I&N Dec. 9 (BIA 1976) 
(holding that a director's refusal to consider a petition withdrawn was erroneous). 
As the petition has been withdrawn, we have no jurisdiction to reach either the merits of the petition 
or the finding of fraud on appeal. See 8 C.F.R. § 103.2(b )(15). The merits of the Director's revocation 
findings are now moot based on the Petitioner's withdrawal of the petition. However, the same is not 
true of the Director's finding of fraud, which can stand independently and may impact future benefit 
requests. Id. ("Withdrawal . . . shall not itself affect [a] new proceeding; but the facts and 
circumstances surrounding the prior benefit request shall otherwise be material to the new benefit 
request."). Moreover, pursuant to section 214(g)(3) of the Act, 8 U.S.C. 1184(g)(3), if an H-lB 
petition subject to the cap is revoked with a finding of fraud, the cap number is restored to the total 
cap for that fiscal year. 
Notwithstanding our finding that the petition has been withdrawn, we recognize that the Director erred 
in their refusal to acknowledge the withdrawal; that error led the Petitioner to file the present appeal. 
Accordingly, we will remand this matter to the Director so that they may treat the appeal as a motion 
to reopen or reconsider the finding of fraud. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
1 Administrative case law and the USCTS Policy Manual provide a 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. The Director's revocation notice did not discuss the specific framework for making 
a fraud determination or apply the facts of the instant matter to each of the required elements of this framework. Therefore, 
the Director did not support this finding. 
2