remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 22973155 
Appeal of Vermont Service Center Decision 
Form I-129, Petition forNonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 11, 2022 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101 (a)(15)(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 Vermont Service Center Director denied the Form I-129, Petition for a Nonimmigrant Worker, 
concludingthatthe Beneficiary abandoned the request to change his nonimmigrant status and therefore 
was not eligibility for a change of status from a North American Free Trade Agreement Professional 
to an H-1 B nonimmigrant worker. 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 
nova. Matter of Christo 's Inc., 26 I&N Dec . 537,537 n.2 (AAO 2015). Upon de nova review, we 
conclude that a remand is warranted in this case. 
The Petitioner filed this petition requesting new employment and a change of the Beneficiary's status 
to an H-1 B. The Director subsequently issued a request for evidence seeking evidence showing the 
Beneficiary was maintaining his nonimmigrant status, and the Petitioner submitted documents in 
response. While the petition was pending , the Beneficiary departed then reentered the United States 
as the same type of nonimmigrant visa that he held prior to this petition's filing. The Director then 
denied the entire H-1 B petition. The Director first noted the portion of the petition relating to the 
Beneficiary's change of status was being denied because he abandoned that request upon departing 
the United States. Then, without offering an explanation or a basis , the Director stated: "Therefore, 
your petition is denied." 
The petition before us consists of two separate benefit requests : (1) the Petitioner's request to classify 
the employment offer as appropriate for the H-1 B category; and (2) the Beneficiary's change of status 
request. 1 The Director issued a decision on the change of status request, but not on the merits of the 
1 Before 1991, these functions required two to three separate filings depending upon whether a change of status was being 
H-1B petition. 2 Because the Director did not explain the basis for denying the H-1B petition on the 
merits, we will remand the matter so they may consider the issue of whether the offered position 
qualifies for classification as a specialty occupation. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
requested: one by thepetitioner(Form T-129H) and the others by the beneficiary (Forms T-506 and T-539). For example, 
the regulations in effect on January I, 1991 provided that a petitioner "shall file a petition in duplicate on Fonn T-129H 
with the service center which has jurisdiction over I-129H petitions in the area where the alien will perform services or 
receive training or as further prescribed in this section." 8 C.F.R. § 214.2(h)(2)(i)(A) (1991 ). Those 1991 regulations 
required applications fora change of status or visa classification to be submitted by the nonimmigrantalien on Form I- 506, 
Applicant for Change ofNonimmigrant Status, filed with the district director havingjurisdiction over the place of 
employment if changing to H orL status. 8 C.F.R. § 248.3(a)and (b )(1991). In addition, theyprovided that "[a]n alien . 
. . shallapplyforanextension of stay on FormI-539 .... [E]ach alienseekinganextensionof stay generally must execute 
and submit a separate application for extension of stay to the district office having jurisdiction over the alien's place of 
temporary residence in the United States." 8 C.F.R. § 214.1 (c)(l) (1991). In implementing the Immigration Act of1990, 
Pub. L. No. 101-649, 104 Stat. 4978, the agency combined these functions into one form (F01m T-129) to process the 
separate requests more efficiently. 56 Fed. Reg. 61111 (Dec. 2, 1991); 56 Fed. Reg. 61201, 61204 
(Dec. 2, 1991 ). 
2 We have no appellate jurisdiction over the change of status request. 8 C.F.R. § 248.3(g). Our decision therefore does 
not impactthe Director's determination that the Beneficiary abandoned the change of status request. 
2