sustained H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 8989104 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 24, 2020 
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 
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 Director of the California Service Center denied the petition , concluding that the Petitioner 
violated the general prohibition on filing multiple H-lB petitions for the same Beneficiary under 8 
C.F.R. § 214.2(h)(2)(i)(G). The Director also determined that the Petitioner had not demonstrated that 
it will employ the Beneficiary in a specialty occupation position. On appeal, the Petitioner contends 
that it has established eligibility for the benefit sought. 
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 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will sustain the appeal. 
I. MULTIPLE H-lB FILINGS 
A. Legal Framework 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) prohibits multiple H-lB petitions from being filed in 
the same fiscal year for the same beneficiary by an employer, or, under certain circumstances, by 
"related entities." 8 C.F.R. § 214.2(h)(2)(i)(G) states, in pertinent part: 
An employer may not file , in the same fiscal year, more than one H-lB petition on 
behalf of the same alien if the alien is subject to the numerical limitations of section 
214(g)(l)(A) of the Act or is exempt from those limitations under section 214(g)(5)(C) 
of the Act. . . . Otherwise, filing more than one H-lB petition by an employer on behalf 
of the same alien in the same fiscal year will result in the denial or revocation of all 
such petitions. If USCIS believes that related entities (such as a parent company, 
subsidiary, or affiliate) may not have a legitimate business need to file more than one 
H-1B petition on behalf of the same alien subject to the numerical limitations of section 
214(g)(1)(A) of the Act or otherwise eligible for an exemption under section 
214(g)(5)(C) of the Act, USCIS may issue a request for additional evidence or notice 
of intent to deny, or notice of intent to revoke each petition. If any of the related entities 
fail to demonstrate a legitimate business need to file an H-1B petition on behalf of the 
same alien, all petitions filed on that alien's behalf by the related entities will be denied 
or revoked.1 
B. Analysis 
As we will explain, we conclude that the general prohibition on filing multiple H-1B petitions under 
8 C.F.R. § 214.2(h)(2)(i)(G) is not applicable here. 
On April 2, 2019, the Petitioner filed an H-1B petition [petition #1] on behalf of the instant Beneficiary 
subject to the numerical limitations of section 214(g)(1)(A) of the Act, [a cap-subject petition], 
utilizing a common carrier. The common carrier notified the Petitioner on April 4, 2019 that there 
was a "problem encountered" with this shipment and the common carrier was unable to provide proof 
of its delivery to USCIS. The Petitioner filed a second cap-subject petition [petition #2] on April 5, 
2019 for the Beneficiary, which is the subject of this appeal. 2 Within petition #2 the Petitioner 
explained that this "petition is not a duplicate filing for [the] same individual. [The common carrier] 
cannot locate [petition #1] so we are filing another set." 
In May of 2019, the Director issued notices of her intent to deny [ITD] both petition #1 and petition 
#2, notifying the Petitioner of her intention to deny the two petitions pursuant to the general prohibition 
on filing multiple H-1B petitions for the same Beneficiary under 8 C.F.R. § 214.2(h)(2)(i)(G). In 
response to the Director's ITD for each petition, the Petitioner provided a copy of an April 2019 email 
sent to the California Service Center's "Premium Processing Unit," which explained:3 
We received the below premium processing receipt today [for petition #1], but please 
note that we also received a premium processing receipt for a petition for the same 
[P]etitioner and [B]eneficiary .... Please note that this is not a case of intentionally 
filing two H-1B petitions for the same person; rather, we were informed [by the 
common carrier that it could not confirm delivery of petition #1], and therefore we 
sent a second, replacement petition for delivery [to USCIS] on April 5, 2019 .... We 
hope that [USCIS] will not reject both of these petitions, as this was clearly not an 
1 The agency adopted additional guidance regarding the application of 8 C.F.R. § 214.2(h)(2)(i)(G) in Matter of S- Inc., 
Adopted Decision 2018-02 (AAO Mar. 23, 2018). 
2 We have reviewed the evidentiary record of petition #1 as part of our determinations in this matter. Petition #1 and the 
instant petition [petition #2] each offer the same employment opportunity to the Beneficiary. 
3 The Petitioner filed requests for premium processing for petition #1 and petition #2. Premium processing allows filers 
to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra amount. See 
8 C.F.R. § 103.7(b)(1)(i)(SS), (e). 
2 
attempt to "game" the [H-1B visa] lottery system, but it seems that one of them can 
be withdrawn. We will leave the decision of which petition to withdraw up to 
[USCIS]. 
After reviewing the Petitioner's responses to the ITDs, the Director denied both of the petitions, 
concluding, in part, that the Petitioner had violated the general prohibition on filing multiple H-1B 
petitions. On appeal, the Petitioner maintains that it only filed an appeal of the denial of the instant 
petition, petition #2; that it had a legitimate business need to file the two H-1B cap-subject petitions, 
and; that it had tried to rectify the multiple petition filing situation by seeking the withdrawal of one 
of the petitions prior to their denial. 
Based on the totality of the evidence, we conclude that the Petitioner had a legitimate business need 
to file petition #1 and petition #2 on behalf of the Beneficiary at the time each petition was filed. We 
acknowledge that the Petitioner did not specifically indicate which petition it wished to withdraw, but 
rather left it up to the Director to decide which petition should be withdrawn. 4 The regulation at 
8 C.F.R. § 103.2(b)(6) provides, in pertinent part, that "[a Petitioner] may withdraw a benefit request 
at any time until a decision is issued by USCIS." Here, the Petitioner specifically requested the 
withdrawal of one of the petitions prior to the Director's decision to deny them, provided evidence of 
its withdrawal request in response to the Director's ITDs, and as such, affirmatively sought to 
eliminate further adjudication of duplicative H-1B petitions filed on the Beneficiary's behalf. 
Therefore, we conclude that the general prohibition on filing multiple H-1B petitions under 8 C.F.R. 
§ 214.2(h)(2)(i)(G) is not applicable here. We withdraw the Director's decision to deny the instant 
petition on this basis. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
4 Here, since petition #1 remains denied there is no risk of both petitions being approved. 
3 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
B. Analysis 
The Director also denied the petition, in part, concluding that the Petitioner had not established that 
the proffered position is a specialty occupation. However, our evaluation of the overall weight of the 
entire evidentiary record leads us to conclude that the preponderance of the evidence in this case favors 
sustaining this appeal under the second alternative prong of the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), and the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).5 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), is satisfied if the Petitioner shows 
that its particular position is so complex or unique that it can be performed only by an individual with 
at least a bachelor's degree in a specific specialty, or its equivalent. The fourth criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so 
specialized and complex that the knowledge required to perform them is usually associated with the 
attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. 
We have carefully reviewed the duties of the proposed position. The Petitioner initially provided a 
description of the Beneficiary's proposed duties and later added explanations of the duties as the 
Beneficiary would be required to carry them out. The elaboration of duties when reviewed within the 
context of the Petitioner's overall business operations describes a position that includes duties that are 
unique to the Petitioner's business such that the position requires a bachelor degree, or higher, in a 
specific specialty that relate directly to the duties of the position. The Petitioner has communicated: 
(1) the actual work that the Beneficiary will perform; (2) the complexity, uniqueness, or specialization 
of the tasks; and (3) the correlation between that work and a need for a particular level of education 
and knowledge. 
5 We do not find sufficient probative evidence in the record to satisfy the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), (3), 
or the first prong of (2). 
4 
Specifically, the Petitioner's description of duties and explanations of those duties within the context 
of its business operation demonstrate that the duties are so unique and complex that they require a 
higher level of understanding and expertise than a general bachelor's degree. In addition, the record 
includes examples of work product which show the complexity and specialization of the position such 
that a bachelor's degree in a specific specialty is required. Further, the record includes evidence of 
the Beneficiary's level of responsibility within the organization and the Petitioner has appropriately 
accounted for the level of responsibility, uniqueness, and complexity of the position with the 
certification of the Beneficiary's wage level in the supporting labor condition application (LCA). 
When viewed in its totality, the record establishes, that more that more likely than not, the nature of 
the specific duties is so unique, specialized and complex that the knowledge required to perform them 
is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. Finally, the record establishes that the position proffered here actually requires the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of 
a baccalaureate or higher degree in a specific specialty as the minimum for entry into the occupation 
as required by the Act. 
111. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has sustained that burden. 
ORDER: The appeal is sustained. 
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