sustained H-1B Case: Behavior Analysis

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 2, 2024 In Re: 34130662 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(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 denied the petition, concluding that the Petitioner did 
not establish that the Beneficiary qualifies for an exemption from the H-lB numerical cap under 
section 214(g)(5) of the Act. The Director dismissed a subsequently filed motion to reopen and 
reconsider. 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 sustain the appeal. 
Section 10l(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b), provides a nonimmigrant 
classification for foreign nationals who are corning temporarily to the United States to perform 
services in a specialty occupation. In general, H-lB visas are numerically capped by statute. Pursuant 
to section 214(g)(l)(A) of the Act, the total number of H-lB visas issued per fiscal year may not 
exceed 65,000. 
In general, section 2 l 4(g)( 5) of the Act provides that: 
The numerical limitations contained in paragraph (l)(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
101(a)(l5)(H)(i)(b) who-
(A) is employed ( or has received an offer of employment) at an institution of higher 
education ( as defined in section 101 (a) of the Higher Education Act of 1965 (20 
[§] U.S.C. l00l(a))), or a related or affiliated nonprofit entity; 
(B) is employed ( or has received an offer of employment) at a nonprofit research 
organization or a governmental research organization; or 
(C) has earned a master's or higher degree from a United States institution of higher 
education ( as defined in section 101 (a) of the Higher Education Act of 1965 (20 
[§] U.S.C. lO0l(a)), until the number of aliens who are exempted from such 
numerical limitation during such year exceeds 20,000. 
The Petitioner filed the H-lB petition and stated that it seeks to employ the Beneficiary as a board 
certified behavior analyst to directly and predominantly further the essential functions of the 
Department of Special Education and Child Development in the at the 
______________ ("the University"). The Petitioner explained that it is cap 
exempt since it is a third party petitioner due to its active affiliation with the University, and the 
Beneficiary will be employed at a qualifying organization. Further, the Petitioner noted that the 
Beneficiary will spend the majority of her work time performing job duties at a qualifying institution 
of higher education that directly and predominately further the essential purpose, mission, and 
objectives of the qualifying institution. 
The Director denied the petition, concluding that the Petitioner did not show that it is exempt from the 
H-lB cap pursuant to 8 C.F.R § 214.2(h)(8)(iii)(F)(4), or that an H-lB cap visa is otherwise available 
to the Beneficiary. See 8 C.F.R § 214.2(h)(8)(ii)(B). The Director indicated that the Petitioner did 
not detail how the Beneficiary's duties directly and predominantly further the essential purpose, 
mission, objectives or functions of the qualifying institution. The Director also listed the Beneficiary's 
worksites and noted that the Petitioner did not sufficiently establish that the Beneficiary will spend the 
majority of her work time at the University. 
On appeal, the Petitioner asserts the Director disregarded critical facts, drew an incorrect conclusion 
regarding the proposed duties of the Beneficiary. and did not analyze the nature of the affiliation 
between the Petitioner and the University. The Petitioner also contends the Director made an incorrect 
conclusion of law by applying a physical presence test which would require that the Beneficiary work 
the majority of her time on the University's campus. 
On appeal, the Petitioner submits a breakdown of time the Beneficiary will spend on each job duty 
and explains how the duty furthers the University's mission and resubmits the affiliation agreements 
between the Petitioner and the University. The Petitioner also submits a detailed letter from the 
University outlining the Beneficiary's duties in the proposed position and states the Beneficiary will 
spend more than 90 percent of her work to further the primary and essential functions and objectives 
of the University. Upon review of the appeal documents, the Petitioner established that the Beneficiary 
qualifies for an exemption from the H-lB numerical cap under section 214(g)(5) of the Act. 
Further, the evidence of record establishes that the proffered position requires both the theoretical and 
practical application of a body of highly specialized knowledge and the attainment of a bachelor's 
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degree or higher in the specific specialty or its equivalent. Moreover, the record establishes that the 
Beneficiary was qualified for the occupation at the time the petition was filed. 
ORDER: The appeal is sustained. 
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