remanded H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 9683247 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 26, 2020 
The Petitioner seeks to employ the Beneficiary temporarily under the H-18 nonimmigrant classification 
for specialty occupations.1 The H-18 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 California Service Center Director initially approved the Form 1-129, Petition for a Nonimmigrant 
Worker, then revoked that 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.2 We review the 
questions in this matter de nova. 3 
While we conduct de nova review on appeal, we conclude that a remand is warranted in this case 
because the Director's decision appears insufficient for review. The Petitioner filed this petition on 
April 4, 2019. Soon after, the Petitioner and counsel sent notification to the Director that the first 
petition (the petition we have on appeal) was mistakenly submitted with only a portion of the evidence 
the Petitioner wished U.S. Citizenship and Immigration Services (USCIS) to consider. Within that 
correspondence, the Petitioner requested the withdrawal of this petition. On April 11, 2019, the 
Petitioner filed a second petition ~ I, which was intended to replace the first petition 
for which it requested the withdrawal. In July 2019, the Director approved the first petition despite 
the withdrawal request. Subsequently, the Director issued adverse notices on both petitions because 
the Petitioner had violated the prohibition on filing more than one cap-subject H-18 petition in the 
same fiscal year. 
On the date the Director received the request to withdraw the first petition, the appropriate action 
would have been to grant and process that request. Instead, the Director took three actions on the first 
petition: it approved the petition, then issued an adverse notice on it, and finally revoked the approval 
despite the Petitioner responding to the adverse notice and informing the Director of the petitioning 
organization's mistake and the efforts to rectify the error. Had the Director granted the withdrawal 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Chri sta's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
request for the first petition, there would not have been multiple H-1B petition filings in one fiscal 
year. 
The Director should remedy this situation by sua sponte reopening the present petition to then grant 
the withdrawal request. And because the Director denied the second petition on the same mistaken 
basis as this petition, she should consider taking the steps to reopen the second petition for an 
adjudication on the merits. Because of the in-processing procedure relating to the second petition, 
USCIS systems do not reflect the date the agency received the second petition. Therefore, it is unclear 
from our perspective without the second petition physically before us, whether the Petitioner filed the 
second petition before or after the date USCIS announced that we had received a sufficient number of 
petitions projected as needed to reach the congressionally mandated regular cap and the U.S. advanced 
degree exemption for fiscal year 2020. The Director should factor those aspects into her eligibility 
determination relating to the second petition. 
Accordingly, the matter will be remanded to the Director to consider the above issues and enter a new 
decision. 
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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