This appeal was not successful at this stage
The AAO dismissed the appeal because the H-1B cap-subject petition was filed more than 45 days after the June 30, 2025 filing deadline specified in the registration selection notice. The petitioner's claim for nunc pro tunc relief was rejected for lack of legal authority.
A law firm received an H-1B cap lottery selection notice instructing it to file a petition between April 1 and June 30, 2025. Its first filing attempt on June 27, 2025 was rejected because it included an incorrect (overpaid) filing fee. Subsequent filing attempts were rejected as untimely, and the petition ultimately accepted for processing was receipted on August 18, 2025—over 45 days past the deadline. SCOPS denied the petition as untimely, and the AAO affirmed on appeal, finding no legal authority for nunc pro tunc relief and holding that USCIS regulations expressly permit denial of petitions filed outside the specified filing period. The AAO declined to reach the separate issue of whether a certified LCA was properly submitted.
What failed: The petitioner's first filing attempt was rejected for submitting an overpayment rather than the exact required fee, and regulations provide no exception for fee overpayments. The petitioner's argument for nunc pro tunc relief failed because neither the cited case law (Patel v. Gonzalez) nor the cited regulation (8 C.F.R. § 214.1(c)(4)(i)) grants USCIS authority to excuse a late-filed H-1B cap-subject petition. The fact that USCIS accepted the petition for processing did not obligate USCIS to adjudicate it on the merits.
Takeaway: H-1B cap-subject petitions must be filed with the exact correct fee and within the filing window on the registration selection notice—overpayments are not accepted, and there is no nunc pro tunc remedy for a late filing caused by an initial fee error. Petitioners should verify the precise fee amount well before the deadline to avoid rejection and loss of a cap slot.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating H-1B criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The petitioner's first filing attempt was rejected for submitting an overpayment rather than the exact required fee, and regulations provide no exception for fee overpayments
- The petitioner's argument for nunc pro tunc relief failed because neither the cited case law (Patel v
- Gonzalez) nor the cited regulation (8 C.F.R
- § 214.1(c)(4)(i)) grants USCIS authority to excuse a late-filed H-1B cap-subject petition
Completed
I-129 filed
Law firm seeking to employ a foreign worker in a specialty occupation
Completed
SCOPS — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2026-04-24
AAO decision — Dismissed
The AAO dismissed the appeal because the H-1B cap-subject petition was filed more than 45 days after the June 30, 2025 filing deadline specified in the registration selection notice. The petitioner's claim for nunc pro tunc relief was rejected for lack of legal authority.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.