dismissed H-1B Case: Chemical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 10546475 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 23, 2020 
The Petitioner, an engineering and technology services company, seeks to temporarily employ the 
Beneficiary as a "chemical engineer" under the H-lB nonimmigrant classification for specialty 
occupations. 1 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 evidence of 
record does not establish that: (1) the Petitioner would maintain an employee-employer relationship 
with the Beneficiary; and, (2) the Beneficiary would perform services in a specialty occupation. 
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 novo.3 Upon de nova review, we will dismiss the appeal. 
I. THE PROFFERED POSITION 
The Petitioner, an engineering and technology services company based in I I Texas filed the 
instant petition on April 5, 2019. At the time of filing, the Petitioner stated that the Beneficiary would 
be assigned to work for an end-client,I O O I at their location in I I 
Louisiana, for the duration of the requested validity period. The Petitioner described the proffered 
position as a "chemical engineer" and provided a list of duties the Beneficiary would perform in the 
proffered position. In response to the Director's request for evidence (RFE), the Petitioner expounded 
upon those duties. 4 
In its RFE response, the Petitioner also stated that due to business necessity, the Beneficiary would be 
assigned to work at a new end-client,.__ ___________ ___, also located in I I 
Louisiana. The Petitioner submitted a new Labor Condition Application (LCA) for the Beneficiary's 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b ), 8 U.S.C. § 1101 (a)(] 5)(H)(i)(b ). 
2 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369,375 (AAO 2010) . 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . 
4 Neither list of duties provided by the Petitioner was affirmed or corroborated by the end-client,~! ______ _ 
new proffered position at the newly assigned physical location, which at the time of the RFE response, 
was pending certification by the Department of Labor (DOL). 5 Though the Petitioner expounded upon 
the duties it originally provided, the Petitioner did not provide information about the duties or 
responsibilities specific to the new position. Rather, the Petitioner submitted a new end-client letter 
which restated the initial list of duties it presented in support of the first assignment with the original 
end-client. 
II. LEGAL FRAMEWORK 
General requirements for filing immigration applications and petitions are set forth at 8 C.F.R. 
§ 103.2(a)(l), in pertinent part, as follows: 
Every benefit request or other document submitted to DHS must be executed and filed 
in accordance with the form instructions ... and such instructions are incorporated into 
the regulations requiring its submission. 
Further discussion of the filing requirements for applications and petitions is found at 8 C.F.R. 
§ 103.2(b)(l): 
Demonstrating eligibility. An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the benefit request and must 
continue to be eligible through adjudication. Each benefit request must be properly 
completed and filed with all initial evidence required by applicable regulations and 
other USCIS instructions. Any evidence submitted in connection with a benefit request 
is incorporated into and considered part of the request. 
With the filing of any H-1 B petition, the petitioner shall submit, among other evidence, "[a] statement 
that it will comply with the terms of the labor condition application for the duration of the alien's 
authorized period of stay." 8 C.F.R. 214.2(h)(4)(iii)(B)(2). 
If and when there is any material change to the terms and conditions of H-lB employment, the 
regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) requires a new or amended petition and LCA to be filed. 
Specifically, this regulation states: 
Amended or new petition. The petitioner shall file an amended or new petition, with 
fee, with the Service Center where the original petition was filed to reflect any material 
changes in the terms and conditions of employment or training or the alien's eligibility 
as specified in the original approved petition . . . . In the case of an H- IB petition, this 
requirement includes a new labor condition application. 
Additionally, 8 C.F.R. § 214.2(h)(l l)(i)(A) states that the petitioner "shall immediately notify the 
Service of any changes in the terms and conditions of employment of a beneficiary which may affect 
5 A petitioner submits the LCA to DOL to demonstrate that it will pay an H- lB worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act: 
20 C.F.R. § 655.73l(a). 
2 
eligibility under section 101 (a)(l 5)(H) of the Act and paragraph (h) of this section," and that "[ a ]n 
amended petition on Form I-129 should be filed when the petitioner continues to employ the 
beneficiary." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not overcome the Director's decision to deny the petition. 
A. Availability of Specialty Occupation Work Pursuant to H-1 B Petition and LCA 
First, we conclude that the Petitioner has not demonstrated the availability of specialty occupation 
work pursuant to the original terms and conditions of the H-lB petition and LCA.6 Eligibility for the 
benefit sought must be assessed and weighed based on the facts as they existed at the time the instant 
petition was filed. Simply stated, the Beneficiary will not be employed in the same, original capacity 
specified on the H- lB petition and LCA: to work for the original end-client, pursuant to the terms and 
conditions set out in the master services agreement, for the entire validity period. Therefore, we 
conclude that the viability of the instant H-lB petition ended with the termination of the Beneficiary's 
assignment with the original end-client. 
We reviewed the Petitioner's documents regarding the Beneficiary's new assignment, including the 
Petitioner's acknowledgment that this new assignment constitutes a material change in the 
Beneficiary's employment. 7 The evidence of the new assignment does not properly support this 
petition. In its RFE response, the Petitioner stated that it will file an amendment to the instant petition 
as soon as the new LCA, which was pending at the time of the RFE response, is certified by DOL. As 
noted above, however, the assignment of the Beneficiary is not simply a short-term assignment to a 
different location, but rather a new assignment under an entirely new contract entered into by the 
Petitioner more than eight months after the instant petition was filed. 8 For this reason alone, the 
petition cannot be approved. 
B. The New LCA 
Even if this were not the case, the petition could not be approved because the new LCA was certified 
after the H-1 B petition was filed. 9 Again, the regulations require that before filing a Form I-129 on 
6 See 8 C.F.R. 214.2(h)(4)(iii)(B)(2) ; 8 C.F.R. § I 03.2(b )(1) (the petitioner must establish eligibility at the time of filing 
its petition); Matter of Mich elin Tire Corp., 17 I&N Dec. 248 (Reg '! Comm'r 1978) (a visa petition may not be approved 
based on speculation of future eligibility or after the petitioner or beneficiary become s eligible under a new set of facts). 
7 A petitioner must "immediately " file an amended petition whenever there are any "material changes " in the tenns and 
conditions of a beneficiary's H-lB employment. 8 C.F.R. § 214.2(h)(2)(i)(E) ; 8 C.F.R. § 215.2(h)(l l)(i)(A) . See Matt er 
of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). 
8 The Petitioner states on appeal that the assignment with the new end-client was finalized on December 18, 2019. Though 
the Petitioner's RFE response was received on December 23, 2019, it did not include any finalized terms of employment 
with the new end-client. On appeal, the master services agreement with the new end-client was signed on February 24, 
2020. As previously stated, the instant petition was filed on April 5, 20 I 9. 
9 The new LCA submitted on appeal was certified on December 26, 2019. It is important to note that the Petitioner did 
not sign the newly certified LCA. As such, even if the new LCA had been certified prior to the filing of the petition , it 
would still not be valid. 
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behalf of an H-IB worker, a petitioner must obtain a certified LCA from DOL in the occupational 
specialty in which the H-lB worker will be employed. 10 The instructions that accompany the Form 1-
129 also specify that an H-lB petitioner must submit evidence that an LCA has been certified by DOL 
when submitting the Form 1-129. 
Though both the original end-client and the new end-client are located in the same geographical region 
for the purposes of the LCA, it is important to note that at the time of filing, the Petitioner did not 
identify any work the Beneficiary would perform at the new end-client location. In fact, documents 
submitted on appeal state that the new assignment with the new end-client would begin on May 6, 
2020. Further, the Form 1-129 requests employment with the original end-client for the period of 
October 1, 2019 to August 29, 2022, whereas the newly certified LCA requests employment for the 
period of December 26, 2019 until December 24, 2022. By the time the new LCA was certified, the 
Level I prevailing wage rate for the geographic region increased from $76,482 to $87,443, which 
constitutes another material change. 11 
The Petitioner acknowledges that when there is any material change to the terms and conditions of 
H-IB employment, the regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) requires a new or amended petition 
and LCA to be filed. The amended or new H-lB petition indicates the new location of the end-client, 
dates, and contains the newly certified LCA that establishes eligibility at the time that a new or 
amended petition is filed. Here, the Petitioner has not yet filed an amended or new petition, but rather 
requests that this instant petition be approved so that it may file an amendment. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USCIS) is the department responsible for determining whether the content of an LCA filed for 
a particular Form 1-129 actually supports that petition. The regulations state, in pertinent part: 
For H-lB visas ... DHS accepts the employer's petition (DHS Fmm 1-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [LCA] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutmy requirements for H-lB visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
As 20 C.F.R. § 655.705(b) requires that USCIS ensure that an H-lB petition is filed with a "DOL­
certified LCA attached" that actually supports and corresponds with the petition. Therefore, this 
regulation inherently necessitates the filing of an amended H-1 B petition to permit USCIS to perform 
its regulatory duty to ensure that a certified LCA actually supports and corresponds with an H-1 B 
10 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
11 The Petitioner classified the proffered position at a Level I wage. A wage determination starts with an entry-level wage 
(Level I) and progresses to a higher wage level (up to Level IV) after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance. Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/download/NPWHC _Guidance_ Revised_ 11 _ 2009 .pdf 
4 
petition as of the date of that petition's filing. In addition, as 8 C.F.R. § 103.2(b )(1) requires eligibility 
to be established at the time of filing, it is factually impossible for an LCA certified by DOL after the 
filing of an initial H-lB petition to establish eligibility at the time the initial petition was filed. 
Therefore, in order for a petitioner to comply with 8 C.F.R. § 103.2(b)(l) and USCIS to perform its 
regulatory duties under 20 C.F.R. § 655. 705(b ), a petitioner must file an amended or new petition, 
with fee, whenever a beneficiary's job location changes such that a new LCA is required to be filed 
with DOL. 
In light of the above, we conclude that a necessary condition for approval of an H-1 B visa petition is 
an LCA, certified on or before the filing date of the petition, with information, accurate as of the date 
of the petition's filing, as to where the beneficiary would actually be employed. This condition was 
not satisfied in this proceeding. The Petitioner attempts to make material changes to the petition by 
submitting new information about reassigning the Beneficiary's off-site employment, which raises 
concerns as to the validity of the proffered position. Again, a petitioner must establish eligibility at 
the time of filing a nonimmigrant visa petition. 12 A visa petition may not be approved at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. 13 Further, the Petitioner 
must resolve inconsistencies with independent, objective evidence pointing to where the truth lies. 14 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. 15 
It is further noted that to ascertain the intent of a petitioner, we must look to the Form I-129 and the 
documents filed in suppmi of the petition. It is only in this manner that we can determine the exact 
position offered, the location of employment, the proffered wage, et cetera. If a petitioner's intent 
changes with regard to a material term and condition of employment or the beneficiary's eligibility, 
an amended or new petition must be filed. 
In view of the foregoing, the petition cannot be approved for this reason alone. Accordingly, we will 
not disturb the Director's denial of the petition. 
C. Specialty Occupation 
1. Duties 
We further conclude that the original proffered position does not qualify as a specialty occupation. 
Specifically, it appears that the position initially proffered for the Beneficiary at the time of filing the 
instant petition no longer exists. 16 In the RFE response, the Petitioner stated that the Beneficiary will 
now be assigned to a new position with a new end-client at a new location. Therefore, we conclude 
that the absence of the initial proffered position precludes a determination that the proffered position 
12 8 C.F.R. § 103.2(b)(l). 
13 See Matter of Michelin Tire C01p., 17 l&N Dec. 248 (Reg'l Comm'r 1978). 
14 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
is Id. 
16 The Petitioner submitted documentation in support of the H- lB petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
5 
qualifies as a specialty occupation under at least one of the four regulatory specialty-occupation criteria 
enumerated at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l)-(4). 
We observe that the duties provided in the Petitioner's initial support letter were very general and 
contained no client-specific duties. In its RFE response, the Petitioner provided an expanded description 
of its duties, but once again did not include any client-specific information. The original end-client did 
not provide a list of duties for the proffered position and therefore we cannot dete1mine whether the 
original end-client affirmed or corroborated the duties the Petitioner provided. 
Moreover, the Petitioner did not provide any duties for the new end-client that were different from the 
duties previously provided for the original end-client. Rather, the duties for the new end-client and the 
original end-client appear to be the same, even though the duties were expounded upon in response to 
the RFE. Presumably, the substantive nature of the work to be performed would change in response to 
a change in the end-client, but this is not reflected in the Petitioner's description of the proffered position. 
Accordingly, we conclude that the Petitioner's descriptions are overly general and only offer a range of 
duties that are not end-client or project specific. We note a one-page document that references the new 
end-client's project and includes a graphic. This document alone is insufficient evidence of the end­
client-specific work the Beneficiary will perform. 
2. Material Inconsistencies 
In addition to our above-stated concern over the generalized duties of the position, a number of 
inconsistencies diminish the probative value of the documentation in the petition and therefore raise 
questions as to the substantive nature of the position. First, we question the managerial structure of the 
Petitioner and the authority of the individuals who signed various documents within the record. Many 
individuals with varying position titles are mentioned and some have signed on behalf of the Petitioner. 
Among them are the following names and position titles, along with the documentation of where these 
names and titles appear: 
• The original LCA and Form I-129 were signed byl !Deputy General 
Manager; 
• The organizational chart states that I I is a General Manager; 
• The Petitioner's exhibit list in its RFE response references a letter from I I I General Manager; ~--,,--~ 
• One of the Petitioner's RFE response letters states that the Petitioner's General 
Manager (SBU Head) - PSE is I I 
• The organizational chart listsl ~s the General Manager- PSE; 
• The Petitioner's initial su=port documents state that the Beneficiary's supervisor is 
I J but then refers to a I I as the supervisor in the 
sentence that follows; 
• The Fmm G-28 on appeal was signed byl I General Manager-
Business Develop; 
• The Form I-290B was signed by~ ______ ___. General Manager - Business 
Dev. & Sales; 
• The Petitioner's support letter submitted on appeal is signed by~------­
Asst. General Manager; 
6 
• I I does not appear in the Petitioner's organizational chart; 
• The Master Services Agreement with the new end-client is signed by._l ---~--' 
Managing Director; 
• The newly certified LCA is not signed, but references .... ! _____ __, Senior 
Manager, Human Resources; 
• A letter in the Petitioner's RFE response is signed byl I Senior 
Manager - Human Resources; and 
• The organizational chart lists l~-----~~s the Senior Manager - Human 
Resources. 
The Petitioner does not clearly define any of these roles such that we may ascertain how all of these 
individuals with multiple variations in position titles are all authorized to sign on behalf of the Petitioner. 
Moreover, without a consistent articulation of the Petitioner's reporting structure, we cannot determine 
whether these individuals have knowledge sufficient to make attestations on the Petitioner's behalf This 
undermines the petition's credibility and inhibits our understanding of the substantive nature of the 
position. 
We also observe the numerous places in which documents in the record are "whited-out" and 
corrected. The format of the corrections suggests that the original letters and documents were prepared 
for another Beneficiary, possibly under a different visa class. Additionally, the Petitioner states on 
appeal that the Director makes a point of stating that the Handbook does not contain descriptions for 
the occupational grouping of "chemical engineers." 17 In our review of the record, including the RFE 
and the Director's decision, we cannot find support for the Petitioner's assertion in this regard. This 
appears to be a statement associated with a different occupational category, perhaps inadvertently left 
in a letter prepared for another beneficiary. At minimum, these errors, taken together the with the 
other concerns previously mentioned, further diminish the credibility of the Petitioner's assertions in 
this petition. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
17 We often look to the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as an informative 
source on the duties and educational requirements of the wide vaiiety of occupations that it addresses. The Bureau of 
Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, may be accessed at https://www.bls.gov. We do 
not, however, maintain that the Handbook is the exclusive source of relevant information. 
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