dismissed H-1B Case: Computer Consulting

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF AX-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY4,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting business, seeks to temporarily employ the Beneficiary as a 
"senior technical lead '' under the H-1 B nonimmigrant classification tor 
specialty occupations. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-18 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, California Service Center. denied the petition. The Director concluded that there was 
insufficient evidence to establish that (1) the proffered position qualifies as a specialty occupation: 
and (2) the Petitioner has submitted a valid labor condition application (LCA). 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusions are erroneous and without legal basis. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address whether the proffered position qualifies as a specialty occupation. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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. 
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Matter of AX-S- LLC 
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: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 
C .F .R. § 214.2(h)( 4 )(iii)(A) 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. Cherf(~fJ; 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''); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor. 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. ,)'ee 
Defensor v. A1eissner, 201 F.3d at 387-88. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work 
B. Proffered Position 
On the Form 1-129, the Petitioner stated that the Beneficiary would work at its office in 
The Petitioner did not request any other work sites. 
In the letter of support, the Petitioner stated that the Beneficiary would perform the following job 
duties in the proffered position: 
The individual will contribute his specialized IT skills with overall development of 
solutions, utilizing existing programming experience in high 
2 
(b)(6)
Matter of AX-S- LLC 
level languages (C++, C#, Java) and relational databases. The individual will design 
and develop custom reports using the . and/or , as well 
as developing and deploying codebase using requisite formal enterprise development 
technologies, such as or related source control 
technologies. The Senior Technical Lead· will outline technical design 
specifications, working in conjunction with functional teams and their outputs (i.e. 
functional designs.) The individual will also provide his services in one or more 
modules. such as: Project Accounting, Financials (ARIAP/GL/Bank) specifically in 
constructing and deploying cubes within the 
framework. The Senior Technical Lead will also lead and manage multiple-
member team(s), as required to perform the following: 
• Resource and deliveries management. 
• Management of customer applications upgrade from to 
• Ensuring quality deliveries in timeline and budget. 
• Deliveries review. 
• Requirement and issues tracking. 
• Status reporting. 
• Ensuring team adherence to and its customer(s)' processes. 
In addition, the Petitioner stated that the position requires "at least a Master's Degree or Bachelor's 
Degree plus at least five (5) years of experience, in Computer Science, Engineering, or a related IT 
field, or the equivalent due to the complexity of the job functions." 
The LCA submitted to support the visa petition states that the proffered position corresponds to 
Standard Occupational Classification (SOC) code and occupation title 15-1121, "Computer Systems 
Analysts,'' at a Level II wage rate. The LCA lists the Beneficiary's sole place of employment as the 
Petitioner's office. 
In response to the Director's request for evidence (RFE), the Petitioner stated that the Beneficiary 
''will be part of the [Petitioner's] team assigned to various client projects" and ··will be required to 
spend a specific number of hours at the client site.'' The Petitioner further stated that while the 
Beneficiary is ''on assignment at the client site, [the Petitioner] will also provide lodging. 
transportation and other accommodations to facilitate the Beneficiary's ability to perfom1 his 
duties." Also in response to the RFE. the Petitioner stated that the Beneficiary's '·physical work-
location is. . . W A,'" at the home office of the Petitioner's owner. 
C. Analysis 
On appeal, the Petitioner asserts that the Director erred in concluding that the proffered position did 
not qualify as a specialty occupation. Upon review of the record in its totality and tor the reasons set 
out below, we determine that the Petitioner has not demonstrated that the proffered position qualities 
as a specialty occupation. Specifically, we find that the record (1) does not establish the substantive 
3 
(b)(6)
Matter of AX-S- LLC 
nature of the proffered position and its constituent duties; and (2) does not demonstrate that the 
indicated duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 
USCIS in this matter must review the actual duties the Beneficiary will be expected to perform to 
ascertain whether those duties require at least a baccalaureate degree in a specific specialty. or its 
equivalent. To accomplish that task. USCIS must analyze the actual duties in conjunction with the 
specific project(s) to which the Beneficiary will be assigned. To allow otherwise. results in generic 
descriptions of duties that, while they may appear (in some instances) to comprise the duties of a 
specialty occupation, are not related to any actual services the Beneficiary is expected to provide. 
In that regard, we have reviewed the information in the record regarding the Petitioner's computer 
consulting business and the claimed project(s) upon which the Beneficiary would work. Upon 
review of this information, we find that the record of proceedings lacks sufficient documentation 
regarding the actual work that the Beneficiary will perform to sufficiently substantiate the claim that 
the Petitioner has H-1 B caliber work for the Beneficiary for the period of employment requested in 
the petition. 
For instance, the Petitioner has made vague and inconsistent claims regarding the identity and 
number of end-client(s) to be serviced by the Beneficiary. The Petitioner stated in its RFE response 
that the Beneficiary would be .. assigned to various client projects as detailed in the ·client List,'" 
and submitted a ·'Client 
List" with six ditierent clients. However, the Petitioner later indicated in the 
RFE response, and again on appeaL that the Beneficiary would be assigned to only one client a 
pharmacy, for the entire duration of the three-year validity period requested in the petition. 
Likewise, the Petitioner has made inconsistent statements regarding where the Beneficiary· s work 
would occur, alternatively stating that the Beneficiary would 
work solely from the Petitioner 's 
office, the Petitioner's home office in Washington, and at one or more unidentified client 
sites. 1 The Petitioner has not resolved these inconsistencies. 
Assuming that the Beneficiary would only be assigned to one client, the pharmacy, as alternatively 
asserted, the Petitioner has not submitted a detailed work order, statement of work. or similar 
1 On appeal the Petitioner asserts that it has .. NEVER " made any statement that the Beneficiary would be working in 
, Washington, at the home office of the Petitioner's President. However , the Petitioner 's assertions are not 
consistent with the evidence of record. In its RFE response, the Petitioner submitted photographs of the home office in 
Washington, and specifically stated that these are .. Photographs of Beneficiary's Work Location ... [at the Petitioner's] 
OWNER'S HOME OFFICE." The Petitioner resubmitted these and additional photographs of its home office in a 
separate document entitled "Work-location" which states the following (verbatim): 
As per above, physical work-location is . . . , WA . The office is an addition to the 
private residence of [the Petitioner's owner]. The office has two distinct work areas, where both [the 
owner] and [the Beneficiary] can work comfortably and each area can be shared if needed , which 
would allow occupancy of up to four. There is an additional conference table available in the separate 
room which accommodates 6 people and can be expanded to I 0 people .... 
4 
Matter of AX-S- LLC 
documentation confirming that the Petitioner and the client have a contractual agreement for the 
Beneficiary's services, and if so, the terms of his assignment. 
In the instant case, the Petitioner submitted a Master Subcontractor Service Agreement (MSA) 
between itself ( .. Contractor'') and a mid-vendor, and the accompanying Statement of Work (SOW) 
for the Petitioner to provide services to the mid-vendor's client. The SOW, however, lists the only 
''Key Personnel" as the Petitioner's President. The Beneficiary is not listed in the SOW. Notably. 
the MSA defines the term "Key Personnel" as .. any employee of or contractor engaged by the 
Contractor assigned to the performance of Services under this Agreement or any Statement of 
Work," and the term .. Statement of Work" as ''any document agreed and signed by the parties 
pursuant to this Agreement and incorporated herein, specifying the details and specifications of 
Services to be performed ... including details on an 'as required basis' of Key Personnel." The 
Petitioner has not identified any provisions in the MSA or SOW that would allow the Petitioner to 
assign unidentified personnel to the client, nor has the Petitioner provided any documentation from 
the client signaling its agreement to the Beneficiary's services although he is not listed in the SOW. 
Moreover, the MSA and SOW were executed on May 6, 2015, after the Director's RFE. Thus. they 
do not establish that the Petitioner had secured this work assignment as of the time of filing the 
petition. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 
8 C.F.R. § 1 03.2(b )(1 ). A visa petition may not be approved at a future date after the Petitioner or 
the Beneficiary becomes eligible under a new set of facts. See Matter of Jvfichelin Tire C 'mJJ .. 17 
I&N Dec. 248 (Reg'l Comm'r 1978). 
On appeal, the Petitioner claims that the date of the SOW is ''not relevant,'' because .. [t]he petitioner 
had reason to anticipate that an agreement would be reached at the time of filing." The Petitioner 
also asserts on appeal that it is unable to list the Beneficiary on the SOW because he .. was not 
employed at present" and ''had no current permission to work in the United States... However. the 
date of the SOW is relevant to establishing that the Petitioner had sufficient hona fide, non­
speculative work for the Beneficiary at the time of filing.2 Furthermore, the Petitioner did not 
submit objective evidence to corroborate its statement that it had .. reason to anticipate that an 
agreement would be reached at the time of filing.'' 
2 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative. or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. . . Moreover, there is no assurance that the alien 
will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419. 30.419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 
5 
(b)(6)
Matter of AX-S- LLC 
Notwithstanding these deficiencies, the MSA and SOW also do not contain a detailed explanation of 
the work to be performed for the client.3 The SOW describes the services to be provided in broad 
terms such as ''[i]mplementation of projects to [mid-vendor's] customers." 
and ''[p ]roviding business and application consulting services, as well as training services to 
customers." The SOW also states the following job duties: "Assisting the project manager to ensure 
successful project delivery, and also providing pre-sales assistance." These job duties arc described 
in broad terms that do not sufficiently illuminate the substantive nature and complexity of the tasks 
to be performed by the Petitioner's personnel. 
Notably, the job duties stated in the SOW are not consistent with the Petitioner's descriptions of the 
proffered position. For example, the Petitioner did not list any sales or "pre-sales" related duties for 
the Beneficiary. Furthermore, the Petitioner indicated that the Beneficiary would report to the 
Petitioner's President. who would serve as his supervisor and ''Project Manager.'' However. the 
SOW states that the Petitioner's President would be ''[a]ssisting the project manager." The 
Petitioner has not reconciled these apparent inconsistencies nor identified the "project manager"' 
referenced in the SOW. Absent reliable and detailed work orders. statements of work. or similar 
documentation describing the specific duties the Beneficiary would perform, as those duties relate to 
specific clients and projects, USC IS is unable to discern the nature of the position and whether the 
position indeed requires the theoretical and practical application of a body of highly specialized 
knowledge attained through a baccalaureate program. 
There are other discrepancies and deficiencies with the Petitioner's job descriptions that further 
preclude us from discerning the nature of the proffered position. For example. despite the 
Petitioner's statements that the Beneficiary will work "in conjunction with functional teams"' and 
"will also lead and manage multiple-member team(s),'' the Petitioner claims to have only one 
employee, the Petitioner's President, who will purportedly lead and manage the Beneficiary. It 
addition, despite the Beneficiary's purported duties to ''lead and manage'' others in his position as a 
·'senior technical lead.'' the Petitioner designated the position at a Level II wage rate. which indicates 
that the Beneficiary is only expected to "perform moderately complex tasks that require limited 
judgment.'' 4 Thus, without meaningful job descriptions within the context of non-speculative 
3 As recognized by the court in Defensor v. Meissner, 20 I F.3d 384, 387-88 (5th Cir. 2000). where the work is to be 
performed for entities other than the Petitioner. evidence of the client companies· job requirements is critical. The court 
held that the former Immigration and Naturalization Service had reasonably interpreted the statute and regulation s as 
requiring the petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the basis of 
the requirements imposed by the entities using the beneficiary's services. !d. Such evidence must be sufficiently 
detailed to demonstrate the type and educational level of highly specialized knowledge in a specific discipline that is 
necessary to perform that particular work. Here, the MSA and SOW do not identify the end-client's job requirements to 
perfonn the contracted work. 
4 The "Prevailing Wage Determination Policy Guidance" issued by the U.S. Department of Labor (DOL) provides a 
description of the wage levels. A Level II wage rate is for a petitioner who expects its employee to perform moderately 
complex tasks that require limited judgment. For additional information, see U.S. Dep't of Labor. Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric . Immigration Programs (rev. Nov. 2009), available 
at http://www.foreignlaborcert .doleta.gov / pdf/NPWHC _Guidance_ Revised _II_ 2009 .pdf. 
Matter of AX-S- LLC 
employment, the evidence of record is insufficient to establish the substantive nature of the work to 
be performed by the Beneficiary. 
We are therefore precluded from finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature ofthat work that determines (1) the normal 
minimum educational requirement for entry into the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the profTered position and thus appropriate for 
review for a common degree requirement. under the first alternate prong of criterion 2; (3) the level 
of complexity or uniqueness of the proffered position, which is the focus of the second alternate 
prong of criterion 2: ( 4) the factual justification for a petitioner normally requiring a degree or its 
equivalent when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties. which is the focus of criterion 4. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. The appeal will be dismissed and the petition denied for this reason. 
II. LCA 
We will now discuss the Director's decision that the Petitioner does not comply with the LCA 
requirement. 
A. Legal Framework 
In pertinent part, the Act defines an H-IB nonimmigrant worker as: 
[A ]n alien ... who is coming temporarily to the United States to perform services ... 
in a specialty occupation described in section 214(i)(l) . . . who meets the 
requirements for the occupation specified in section 214(i)(2) ... and with respect to 
whom the Secretwy o.lLabor determines and cert(fies to the [.Secretary (~{Homeland 
Security] that the intending employer has filed ·with the cS'ecretary [(~l Labmj an 
application under section 212 (n)( I) .... 
Section 101(a)(l5)(H)(i)(b) ofthe Act (emphasis added). 5 
DOL guidance further indicates that a position requiring "lead'' or supervisory duties would appear to indicate at least a 
Level III wage level ("experienced") or a Level IV position ("fully competent"). See id. 
5 In accordance with section 1517 of title XV ofthe Homeland Security Act of2002 (HSA). Pub .. L. No. 107-296. 116 
Stat. 2135, any reference to the Attorney General in a provision of the Act describing functions which were transferred 
from the Attorney General or other U.S. Department of Justice official to U.S. Department of Homeland Security (DHS) 
by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See 6 U.S.C. § 557 (2003) (codifying 
HSA, tit. XV, § 1517); 6 U .S.C. § 542 note; 8 U .S.C. § 1551 note. 
Matter of AX-S- LLC 
In turn. section 212(n)(l )(A) of the Act. 8 U.S.C. § 1182(n)(l )(A), requires an employer to pay an 
H-IB worker the higher of either the prevailing wage for the occupational classification in the ··area 
of employmenC or the actual wage paid by the employer to other employees with similar experience 
and qualifications who are performing the same services.6 See 20 C.F.R. § 655.731(a): 
Venkatraman v. REI Sys .. Inc., 417 F .3d 418. 422 & n.3 (4th Cir. 2005): lvfichal Vl?jtisek-Lom & 
Adm 'r Wage & Hour Div. v. Clean Air Tech. Int '1, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't 
of Labor Admin. Rev. Bd. July 30. 2009). 
Implemented through the LCA certification process, section 212(n)(l) is intended to protect U.S. 
workers' wages by eliminating economic incentives or advantages in hiring temporary foreign 
workers. See. e.g.. 65 Fed. Reg. 80,110, 80J 10-111, 80.202 (2000). The LCA currently requires 
petitioners to describe, inter alia. the number of workers sought, the pertinent visa classification for 
such workers, their job title and occupational classification. the prevailing wage, the actual rate of 
pay. and the place(s) of employment. 
To promote the U.S. worker protection goals of a statutory and regulatory scheme that allocates 
responsibilities sequentially between DOL and the U.S. Department of Homeland Security (OilS). a 
prospective employer must file an LCA and receive certification from DOL before an H-1 B petition 
may be submitted to USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b)(2).7 If an 
employer does not submit the LCA to USCIS in support of a new or amended H-1 B petition. the 
process is incomplete and the LCA is not certified to the Secretary of Homeland Security. See 
section 101(a)(l5)(H)(i)(b) of the Act: 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b): see 
also 56 Fed. Reg. 37,175, 37,177 (1991): 57 Fed. Reg. 1316, 1318 (1992) (discussing tiling 
sequence). 
In the event of a material change to the terms and conditions of employment specified in the original 
petition, the Petitioner must file an amended or new petition with USCIS with a corresponding LCA. 
Specifically. the pertinent regulation requires that a petitioner file an amended or new petition. with 
fee, to reflect any material changes in the terms and conditions of employment as specified in the 
original petition. 8 C.F.R. § 214.2(h)(2)(i)(E). For an H-1B petition, this requirement includes a 
new labor condition application. ld. Furthermore, a petitioner must .. immediately notify the Service 
of any changes in the terms and conditions of employment of a beneficiary which may affect 
eligibility" for H-1 B status and, if it will continue to employ the beneficiary. file an amended 
petition. 8 C.F.R. § 214.2(h)(ll)(i)(A). 
6 The prevailing wage may be determined based on the arithmetic mean of the wages of workers similarly employed in 
the area of intended employment. 20 C.F.R. § 655.73l(a)(2)(ii). 
7 Upon receiving DOL's certification, the prospective employer then submits the certified LCA to USC IS with an H-1 B 
petition on behalf of a specific worker. 8 C.F.R. § 214.2(h)(2)(i)(A), (2)(i)(E), (4)(iii)(B){l). DOL reviews LCAs .. for 
completeness and obvious inaccuracies," and will certify the LCA absent a determination that the application is 
incomplete or obviously inaccurate. Section 212(n)(l )(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1 B visa petition, including the specific place of 
employment. 20 C.F.R. § 655.705(b); see generally 8 C.F.R. § 214.2(h)(4)(i)(B). 
8 
(b)(6)
Matter of AX-S- LLC 
A change in the place of employment of a beneficiary to a geographical area requmng a 
corresponding LCA be certified to DHS with respect to that beneficiary may affect eligibility for 
H-IB status and is, therefore. a material change for purposes of 8 C.F.R. 
§ 214.2(h)(2)(i)(E) and (ll)(i)(A). When there is a material change in the terms and conditions of 
employment, the petitioner must file an amended or new H-1 B petition with the corresponding LCA. 
8 C.F.R. § 214.2(h)(2)(i)(E). See also Matter ofSimeio Solutions, 26 I&N Dec. 542 (AAO 
2015). 
B. Analysis 
In this matter. the Petitioner claimed in both the Form 1-129 and the certified LCA that the 
Beneficiary's sole place of employment would be located in 
Metropolitan Statistical Area).8 The Petitioner did not request other worksites on the LCA. 
Thereafter, in response to the RFE. the Petitioner indicated that the Beneficiary would work out of 
its owner's home office located in , Washington ( , WA Metropolitan 
Division). The worksite is located in a metropolitan area differing from the worksite listed on the 
original petition. This new work location constitutes a material change. and required the Petitioner 
to file an new or amended petition to properly notify USC IS of the new worksite and change in the 
terms and conditions of employment. 
The Petitioner also indicated that the Beneficiary would work on "various client projects" and would 
'·be required to spend a specific number of hours at the client site.'' On appeal, the Petitioner asserts 
that it was not required to submit a new LCA for these client sites because .. these potential travel 
destinations would be 'casual and on a short-term basis .... However, the Petitioner has not submitted 
additional information, corroborated by objective evidence, to support its assertions. As such. the 
Petitioner has not established that the client site(s) would be a short-term placement or a .. non­
worksite" such that a new LCA would not be required. See generally 20 C.F.R. §§ 655.715. 
655.735. 
Because section 212(n) of the Act ties the prevailing wage to the "area of employment .. a change in 
the Beneficiary's place of employment to a geographical area not covered in the original LCA would 
be material for both the LCA and the Form 1-129 visa petition, as such a change may affect 
eligibility under section 101(a)(15)(H) ofthe Act. See, e.g., 20 C.F.R. § 655.735(f). IC for example. 
the prevailing wage is higher at the new place of employment the Beneficiary's eligibility for 
continued employment in H-lB status will depend on whether his or her wage for the work 
8 With certain limited exceptions, the applicable DOL regulations define the term "place of employment" as the worksite 
or physical location where the work actually is performed by the H-1 B nonimmigrant. See 20 C.F.R. § 655.715. The 
Office of Management and Budget established Metropolitan Statistical Areas to provide nationally consistent geographic 
delineations for collecting, tabulating and publishing statistics. See 44 U.S.C. § 3504(e)(3); 31 U.S. C. § II 04( d); Exec. 
Order No. I 0,253, 16 Fed. Reg. 5605 (June II, 1951 ); 75 Fed. Reg. 37.246, 37,246-252 (20 I 0) (discussing and defining. 
inter alia, Metropolitan Statistical Areas). 
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Matter of AX-S- LLC 
performed at the new location will be sufficient. As such, for an LCA to be effective and correspond 
to an H-IB petition, it must specify the Beneficiary's place(s) of employment. 9 
Having materially changed the Beneficiary's authorized place of employment to a geographical area 
not covered by the original LCA, the Petitioner was required to immediately notify USCIS and tile 
an amended or new H-1 B petition, along with a corresponding LCA certified by DOL with both 
documents indicating the relevant change. 8 C.F.R. § 214.2(h)(2)(i)(E), (h)(ll)(i)(A). The 
Petitioner has not done so here, and thus, has not complied with the LCA requirement. 
10 
For this 
additional reason, the appeal will be dismissed and the petition denied. 
III. EMPLOYER-EMPLOYEE AND PAYMENT OF REQUIRED WAGE 
Since the identified grounds for denial are dispositive of the Petitioner's appeal, we need not address 
other grounds of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly 
note and summarize them here with the hope and intention that, if the Petitioner seeks again to 
employ the Beneficiary or another individual as an H-IB employee in the proffered position. it will 
submit sufficient independent objective evidence to address and overcome these additional grounds 
in any future filing. 
Upon review, we find that the Petitioner has not demonstrated that it qualifies as a United States 
employer. As detailed above, the record of proceedings lacks sufficient documentation evidencing 
what exactly the Beneficiary would do for the period of time requested or where exactly and for 
whom the Beneficiary would be providing services. Given this specific lack of evidence, the 
Petitioner has not corroborated who has or will have actual control over the Beneficiary" s work or 
duties, or the condition and scope of the Beneficiary's services. In other words, the Petitioner has 
not established whether it has made a bona fide offer of employment to the Beneficiary based on the 
evidence of record or that the Petitioner, or any other company which it may represent. will have and 
maintain the requisite employer-employee relationship with the Beneficiary for the duration of the 
requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term ""United States 
employer" and requiring the Petitioner to engage the Beneficiary to work such that it will have and 
maintain an employer-employee relationship with respect to the sponsored H-1 B nonimmigrant 
worker). Again and as previously discussed, there is insufficient evidence detailing where the 
9 
A change in the Beneficiary's place of employment may impact other eligibility criteria, as well. For example. at the 
time of filing, the Petitioner must have complied with the DOL posting requirements at 20 C.F.R. § 655.734. 
By not filing an amended petition with a new LCA, or by attempting to submit a preexisting LCA that has never been 
certified to USCIS with respect to a specific worker, a petitioner may impede efforts to verify wages and working 
conditions. Full compliance with the LCA and H-1 B petition process, including adhering to the proper sequence of 
submissions to DOL and USCIS, is critical to the U.S. worker protection scheme established in the Act and necessary for 
H-1 B visa petition approval. 
10 The Petitioner also did not submit an itinerary with the petition listing all the dates and locations of the Beneficiary's 
work. 8 C.F.R. § 214.2(h)(2)(i)(B) (requiring an itinerary for services performed in more than one location); 8 C.F.R. 
§ I 03 .2(b )(I). 
10 
Matter of AX-S- LLC 
Beneficiary will work. the specific projects to be performed by the Beneficiary, or for which 
company the Beneficiary will ultimately perform these services. 
Finally, the Petitioner has not established that it is in full compliance with the applicable statutory 
and regulatory provisions regarding payment of the required wage, fees. and costs. More 
specifically, the Petitioner's offer letter to the Beneficiary states: ''If you leave [the Petitioner] 
before one year of continuous employment you are required to return the total amount of Hl-B visa 
and other related administrative expenses." 
Under the H-IB program, however, the Petitioner is prohibited from deducting an H-18 employee's 
wages with regard to recouping a business expense of the employer, which includes "attorney fees 
and other costs connected to the performance of H-IB program functions which are required to be 
performed by the employer (e.g., preparation and filing of LCA and H-1B petition).'' See section 
10l(a)(15)(H)(i)(b) of the Act; 20 C.F.R. § 655.731(c)(9)(iii). The Petitioner also may not recoup 
any part of the ACWIA additional filing fee, whether directly or indirectly, voluntarily or 
involuntarily, from the Beneficiary. See section 214(c)(l2)(A) of the Act; 20 C.F.R. 
§ 655.731(c)(10)(ii). The Petitioner is further prohibited from requiring an H-IB employee to pay a 
penalty for ceasing employment with the Petitioner prior to a contracted date. See section 
101(a)(l5)(H)(i)(b) ofthe Act; 20 C.F.R. § 655.731(c)(IO)(i). The Petitioner's offer letter imposes 
conditions that appear to violate statutory and regulatory provisions related to the Petitioner's 
payment ofthe required wage and fees. See generally 20 C.F.R. § 655.731(a). (b), (c). 
IV. CONCLUSION 
It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter(~( AX-S- LLC, ID# 16746 (AAO May 4, 2016) 
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