dismissed H-1B Case: Clinical Research

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-A- MD LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 9, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which describes itself as a physician's office with a clinical research component, seeks 
to extend the temporary employment of the Beneficiary as a "clinical research coordinator/manager" 
under the H-1B nonimmigrant classification for specialty occupations. See Immigration and Nationality 
Act section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 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 Vermont Service Center denied the petition. The Petitioner appealed the denial, 
which we dismissed on the basis that the Petitioner did not sufficiently establish that the protiered 
position qualifies as a specialty occupation. 
The matter is before us on a motion to reopen. In its motion, the Petitioner submits additional 
evidence and asserts that it has satisfied all evidentiary requirements. We will deny the motion. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on documentary evidence of new facts. See ·s C.F.R. § 1 03.5(a)(2). The 
regulation does not define what constitutes a "new" fact. Unlike the Board of Immigration Appeals' 
definition of "new" at 8 C.F.R. §. 1003.23(b)(3), we do not require the evidence of a "new fact" to 
have been previously unavailable or undiscoverable. Instead, we interpret "new facts" to mean facts 
that are relevant to the issue(s) raised on motion and that have not been previously submitted in the 
proceeding, which includes the original petition. Reasserting previously stated facts or resubmitting 
previously provided evidence does not constitute "new facts." We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
In our previous decision, we concluded that the Petitioner had not sufficiently described and 
documented the duties of the proffered position within the context of the Petitioner's business 
operations, precluding us from finding that the proffered position satisfies any criterion at 
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Matter of S-A- MD LLC 
8 C.F.R. § 214.2(h)(4)(iii)(A). We specifically observed unresolved discrepancies regarding the 
claimed business operations, the existence of a separate legal entity, the location of the proffered 
employment, and the need for a medical license, among other issues. We also determined that the 
Petitioner did not establish that the proffered position required a degree "in the specific specialty 
(or its equivalent)." See section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l)(B). We hereby 
incorporate our prior decision by reference. For purposes of this motion, we limit our discussion to 
the new facts submitted by the Petitioner. 1 
The Petitioner moves to reopen the petition so that we can consider additional evidence in support of 
its contention that the proffered position is a specialty occupation. To that end, the Petitioner 
submits the following: 
• A motion brief. 
• Three clinical study agreements. 
• The Petitioner's organization chart. 
• Six paystubs issued to the Beneficiary from the Pe_titioner. 
• A letter from the 
• A letter from the 
A. Clinical Study Agreements 
The Petitioner submits three separate clinical trial study agreements that list as 
the "institution" and as the "principal investigator." Each agreement indicates 
that and share a principle office and place of business. The 
agreements also state that payments should be made to the Petitioner. 
On motion, the Petitioner explains that it created a division for the clinical research activities that 
"has been introduced to our partners as ' The Petitioner further states that the 
"entity functions as nothing more than a department name for research activities at the petitioner's 
site." The Petitioner also stated that the Petitioner's name and tax identification number are used for 
all agreements. However, upon review of the three submitted agreements, they do not clearly 
indicate that and the Petitioner are the same company. In addition, the 
Petitioner did not submit corroborating documentation such as a business plan, tax documents, 
annual report or operational documents, to ·indicate that the Petitioner is also doing business as 
Furthermore, we take administrative notice that the Alabama Secretary of State website lists the 
Petitioner and as two distinct entities. According to the website, the 
1 
On motion, the Petitioner clarifies that the proffered position corresponds to Standard Occupational Classification 
(SOC) code and title 19-1042, "Medical Scientists, Except Epidemiologists." This issue was discussed extensively in 
our decision and is not considered new information. 
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Matter of S-A- MD LLC 
Petitioner was formed in October 2001 and was, formed in June 2011.2 
and the The Petitioner did not provide sufficient evidence to establish that 
Petitioner are the same company, rather than two distinct corporate entities. ' 
B. Organization Chart 
The Petitioner submits an organization chart that lists the names of the employees and their job titles. 
The chart does not indicate the job duties of the positions, or an explanation of the division of 
employees for the medical practice versus the clinical research. In addition, in the request for 
evidenc:e, the Director specifically requested an organization chart with the names, job titles, and 
brief description of duties performed by the individuals; however, the Petitioner did not submit this 
documentation at that time. "Failure to submit requested evidence which precludes a material line of 
inquiry shall be grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(14). 
C. Beneficiary's Paystubs 
The petitioner submits six paystubs issued to the Beneficiary from the Petitioner as evidence of an 
employment relationship. Although the paystubs indicate that the Petitioner paid the Beneficiary's 
salary, it does not explain the Beneficiary's role and employment relationship with 
This documentation does not overcome the concerns raised above and in our appeal 
decision. The copies of recent checks payable to the Beneficiary for his services do not demonstrate 
eligibility for the requested benefit. 
D. Letters 
The Petitioner submits a letter from the. 
informing the Beneficiary that his application has been accepted to be a Fellow of the 
The letter includes an attached certificate. 
The Petitioner also submits a letter from the 
informing the Beneficiary that he is recognized as a Certified Principal Investigator. This letter is 
also accompanied by an certificate. 
On motion, the Petitioner explained that the Beneficiary "is overall responsible of planning and 
execution of all research related assignments and activities in the organization," and states that the 
owner's main focus is on working as a physician and will "take care of few selected components of 
the research." The Petitioner pointed out that the Beneficiary is a certified principal investigator. 
However, upon review of the letter from the Beneficiary was certified as a principal 
investigator in October 2015, nearly a year after the instant petition was filed. United States 
Citizenship and Immigration Services (USCIS) regulations 
affirmatively require a petitioner to 
establish eligibility for the benefit it is seeking at the time the petition is filed. 
2 This information can be accessed at the Internet site http://sos.alabama.gov/. 
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Matter of S-A- MD LLC 
See 8 C.F .R. § 103 .2(b )(I). A visa petition may not be approved based on speculation of future 
eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 1998). 
E. Job Location 
On motion, the Petitioner stated that the Beneficiary "heads the Research Program at the petitioner's 
primary place of address but the nature of the clinical research work at the petitioner's site is such that 
patients are referred from other medical practices across the Tennessee valley, contributing to the 
beneficiary's increasing need to travel in the region working for the Petitioner's research interests." 
The Petitioner has provided inconsistent information about the location of the Beneficiary's 
employment. While the Petitioner claims in the labor condition application (LCA) that the 
Beneficiary will be employed on-site, we observe that the Petitioner will work in other sites. 
The Petitioner did not provide an explanation for the variances in the job location. 
F. Prior Approvals 
On motion, the Petitioner stated that it is "aware of at least three other individuals who are having 
[sic] the same qualification, experience and background as that of beneficiary of this petition were 
granted H-1 by USCIS." If the previous nonimmigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approvals 
would constitute material and gross error on the part of the Director. We are not required to approve· 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may 
have been erroneous. See Matter of Church Scientology lnt 'l, 19 I&N Dec. 593, 597 
(Comm'r 1988). 
G. Additional Issues 
Further, our initial decision dismissing the appeal contained a detailed analysis as to why the 
Petitioner did not establish that the specific position in this particular H-1B petition is a specialty 
occupation or that the Beneficiary is qualified to perform the duties of a specialty occupation. As the 
Petitioner does not address these deficiencies on motion, the issues are waived. 
III. CONCLUSION 
The newly submitted evidence does not overcome the grounds for denial and establish eligibility for 
benefit. Therefore, the Petitioner has not shown proper cause to reopen the proceeding. 
ORDER: The motJon to reopen is denied. 
Cite as Matter of S-A- MD LLC, ID# 634675 (AAO Aug. 9, 2017) 
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