dismissed H-1B Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-P-D- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 26, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
A dental office seeks to temporarily employ the Beneficiary as a dentist under the H-1 B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 10l(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 California Service Center denied the petition. concluding that: ( 1) the Petitioner 
tiled a duplicate petition in prohibition of 8 C.F.R. § 214.2(h)(2)(i)(G): (2) the Petitioner did not 
make a credible offer of employment: and (3) the Petitioner did not pay the appropriate fee under the 
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). 
On appeal. counsel submits a brief and additional evidence, and asserts that the Director erred in her 
decision. 
Upon de novo review. we will dismiss the appeal. 
T. BACKGROUND 
The Form I-129. Petition for a Nonimmigrant Worker. listed the name of the Petitioner asS Corp. 1 
The Form I-129 requested new full-time employment for the Beneficiary. listed only one work 
address for her. and indicated that an itinerary would not be submitted with the petition. 
The Director issued a notice of intent to deny (NOID) questioning whether S Corp. and a related 
entity, D Corp .. filed duplicate petitions for the Beneficiary, and whether a credible offer of 
employment existed since both entities offered full-time employment. The Director further inquired 
1 
We will use abbreviated company names for simplicity and privacy purposes. 
.
Matter ofS-P-D- Corp. 
about the appropriate ACWIA fee, noting that another company, 
petition. 
, appeared to have filed the 
responded to the NOID explaining that S Corp. is the Petitioner and did not intend to submit 
duplicate petitions for the Beneficiary. Citing to the regulation at 8 C.F.R. § 214.2(h)(2)(i)(C) 
requiring separate petitions when a beneficiary will perform services for more than one employer, 
reasoned that two petitions were submitted for the Beneficiary because she will he concurrently 
working for S Corp. and D Corp. 
On appeal, counsel elaborates that, at the time of filing, both S Corp. and 0 Corp. intended to 
employ the Beneficiary on a full-time basis, defined as at least 30 hours per week. Counsel also 
requests U.S. Citizenship and Immigration Services (USCIS) to treat this as a ''concurrent" tiling 
explaining that, at the time of tiling, it could not have submitted this as a petition for concurrent 
employment since concurrent petitions require at least one approval. 
II. MULTIPLE PETITIONS 
A. Legal Framework 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) prohibits multiple H-1 B petitions from being tiled in 
the same fiscal year for the same bencticiary 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 tile, in the same fiscal year, more than one H-1 B petition on 
behalf of the same alien if the alien is subject to the numerical limitations of section 
214(g)( 1 )(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-I B 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 USC IS 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-1 B petition on behalf of the same alien subject to the numerical 
limitations of section 214(g)(J)(A) ofthe Act or otherwise eligible for an exemption 
under section 214(g)(5 )(C) of the Act USC IS 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-1 B 
petition on behalf of the same alien, all petitions tiled on that alien's behalf by the 
related entities will be denied or revoked. 
2 Documents in the record identify as a dental support organization which provides administrative and business 
support services (e.g., human resources, recruiting, payroll, and legal support services) to third party dental offices. 
including D Corp. and S Corp. 
2 
Matter o(S-P-D- ( 'orp. 
B. Analysis 
Upon review, we conclude that the Director properly denied the petition. 
In our view. S Corp. and D Corp. are ''related entities:· Their relationship is evident by such factors 
as their common ownership, utilization of the same management company's services, and history of 
concurrently employing the Beneficiary.' While counsel correctly points out that S Corp. and 
D Corp. are separate and independent employers with different federal tax identification numbers, 
their separate legal existence does not preclude a finding that they are ""related'' for these purposes. 
To say that an entity is "'related" to another, under the ordinary meaning of the word, is to say that a 
reasonable connection exists between the two. 4 The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) does 
not limit the meaning of '·related entities" to a parent company, subsidiary, or affiliate; instead, by 
using "such as'' before those terms, it indicates that "'related entities" can include, but are not limited 
to, those enumerated relationships. We expansively interpret the types of •·related entities" 
encompassed by 8 C.F.R. § 214.2(h)(2)(i)(G) in order to effectuate this provision's remedial 
purposes. 8 C.F.R. § 214.2(h)(8)(ii)(B) (addressing ''the fair and orderly allocation of numbers" 
under the H-lB visa lottery); Petitions Filed on Behalf of H-lB Temporary Workers Subject to or 
Exempt from the Annual Numerical Limitation, 73 Fed. Reg. 15389-95, 15391-93 (Mar. 24, 2008) 
(discussing the practice of petitioners who exploit the system by attempting to increase their chances 
of being selected for cap numbers). S'ee, e.g. Gomez v. Toledo. 446 U.S. 635. 639 (1980) (a 
remedial statute should be construed generously to further its primary purpose) (citing Whirlpool 
Corp. v. Marshall, 445 U.S. 1, 12-13 (1980)). 
Counsel asserts that. to the extent S Corp. and D Corp. are related. they had a legitimate business 
need to file separate petitions for the Beneficiary based on their concurrent employment for her. 
However, the record does not sufticiently document the terms and conditions of the Beneficiary's 
employment, which undermines any claim regarding either entity's legitimate need. 
Specifically, both petitions indicated that the Beneficiary will be employed on a full-time basis. but 
the record contains discrepancies regarding the Beneficiary's total number of hours per week per 
location. For example, on appeal counsel explains that S Corp's definition of ·'full-time" is at least 
30 hours per week per ot1ice according to the Affordable Care Act. However. S Corp.'s original 
employment agreement with the Beneficiary, dated August 2015. is for pmi-time employment. 
defined as less than 32 hours per week. While counsel explains that this employment agreement was 
signed prior to S Corp.'s adoption ofthe Affordable Care Act definition in 2015. she does not clarify 
exactly when S Corp. adopted the new definition. Nor is counsel's explanation corroborated by the 
Corp.'s amended December 2015 employment agreement which. while changing the Beneficiary's 
3 These are not exclusive factors. 
4 
For example, Merriam- Wehster Online Dictionmy defines the word ''related" as "connected by reason of an established 
or discoverable relation.'' Merriam-Wehster Online Dictionw)'. https://www.rnerriarn-webster.com/dictionary!related 
(last visited Dec. 22. 20 17). 
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Matter ofS-P-D- Corp. 
proposed employment from part-time to full-time , still defines part-time employment as less than 32 
hours per week. Notably, the record contains a copy of the Beneficiary's employment agreement 
with D Corp. which is only for part-time , not full-time, employment. The employment agreements 
are silent as to the Beneficiary's specific pay rate. 
Further, the Form 1-129 listed the proffered wage as $2,000 per week , and the labor condition 
application (LCA) 5 indicated that the Beneficiary will be paid $50 per hour, which would suggest 
that based on the $2,000 weekly wage, she would work 40 hours per week. On the other hand, the 
Beneficiary's pay statements show an hourly pay rate of $56.25 per hour. The pay statements 
contain varying amounts of pay and unexplained pay categories, and we are unable to how many 
hours the Beneficiary worked during each pay period. For example, for the pay period from April 
16, 2016, to April 30, 2016, the pay categories include "Salary" of $1,560 and ''Regular-Dr." 
category of $1,590 , which add up to $3,150. At $56.25 pay rate, this suggests that the Beneficiary 
worked 56 hours for the two week period or 28 hours per week. However , another pay statement 
from June 1, 2016, to June 15, 2016, reflect s that she received $1,560 , which would suggest she 
worked 28 hours for the two week period or 14 hours per week. 
Moreover, the employment agreement allows the Beneficiary to provid e dental services "at any and 
all other dental practices receiving business support services from or at1iliated companie s].'" 
By the very terms of her employment agreement, the Beneficiary may provide dental service s to 
other, unspecified dental offices under unspecified conditions. This contractual provision opens up 
additional questions about the Beneficiary' s proposed employment. 
As discussed above , the inconsi stencies and ambiguities surrounding the term s and conditions of 
Beneficiar y's employment preclude us from assessing the legitimac y of the claimed busines s need. 
Without more , we conclude that the Petition er has not demonstrated its legitimate business need and 
overcome the Director' s grounds for denying the petition. 6 
III. CREDIBL E OFFER OF EMPLOYM ENT 
We also agree with the Director that the record was insufficient to demonstrate the credibility of the 
job offer to the Beneticiary. As discussed above. the record does not sufficiently demonstrate the 
terms and condition s of the proposed employment, including how many hours she will work per 
week per location and her pay rate . 
5 The Petitioner is required to submit a certified LC A to demonstrate that it will pay an H-1 B 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 experience and qualifications who are performing the same services. See 
Maller of"Simeio Solutions. LLC, 26 I&N Dec. 542 . 545-546 (AAO 20 15). 
6 
We acknowledge counsel' s explanation for why she believed the filing of two petitions was necessary. If the record 
had credibly demonstrated the Beneficiary's definite, concurrent employment with both entities as claimed, then we 
likely would have agreed with counsel's position under those circumstances. However. we cannot reach that conclusion 
here. As discussed above, the inconsistencies and ambiguities surrounding the terms and conditions of Beneficiary's 
employment undermines the legitimacy of the claimed business need. 
4 
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Matter ofS-P-D- Corp. 
Ambiguities surrounding the actual employer, i.e., the Petitioner, further cloud our understanding of 
the job offer's credibility. While S Corp. is named as the employer and Petitioner, a representative 
of signed all attestations on the Form 1-129 and accompanying forms in the spaces reserved 
exclusively for the "Petitioner'' or an "Authorized Official of Employer." The support letter 
submitted with the petition is from and speaks of S Corp. as "part of' and the Beneficiary 
as becoming part of "our professional statr (emphasis added). submitted the NOlO response. 
The appeal was submitted by of whose Form G-28, Notice of Entry of 
Appearance as Attorney or Accredited Representative, was signed by a representative of See 
8 C.F.R. § 292.4(a) (the Form G-28 must be properly completed and signed by the Petitioner). 
On appeal, counsel contends that properly signed all forms as D Corp.'s ·'agent for service." 
However, the record does not support the conclusion that qualified as D Corp.'s "agent" under 
California law, and more pertinently, for H-1B purposes under 8 C.F.R. § 2l4.2(h)(2)(i)(F). The 
record does not contain any agent authorization or similar contractual agreement between and 
D Corp. While the record confirms the existence of a relationship between and D Corp., it does 
not sufficiently detail the scope of that relationship, including authority, if any, to sign or file 
immigration paperwork on D Corp.'s behalf. The record as presently constituted does not 
sufficiently demonstrate who the actual employer and Petitioner is, and consequently. whether D 
Corp.'s offer of employment to the Beneficiary is credible. 
Even if S Corp. is the Petitioner of the Form I-129, we must question whether it maintained this 
standing at the time of appeal. On appeal, counsel submits new evidence establishing that S Corp. 
amended its corporate structure and changed its legal name to This corporate restructure 
appeared to have occurred on or before January 1, 2017. 7 The appeal was subsequently tiled on January 
18, 2017, but continues to name the Petitioner as S Corp. rather than its legal name at that time, 
Moreover, counsel states that the restructure "does not grant any benefits or allowances for 
immigration purposes.'' This statement raises additional questions about the terms of agreement under 
which the corporate restructure took place. e.g., whether succeeded to the interests and 
obligations of S Corp. and whether the terms and conditions of employment remain the same but for the 
Petitioner's identity. See section 214(c)(l0) ofthe Act; 8 C.F.R. § 214.2(h)(2)(i)(D), (E); 20 C.F.R. 
§ 655.730(e)(2). 
Ultimately, the record does not sufficiently demonstrate the terms and conditions of employment, and 
hence, the credibility of the job otTer. The Petitioner has not overcome this additional ground of denial. 
IV. ACWIA FEE 
The same ambiguities regarding the actual employer and Petitioner also preclude us from 
determining whether the appropriate ACWlA fee was paid for this petition. Because the record does 
not sufficiently establish who the Petitioner is, i.e., or S. Corp., we cannot determine the 
7 
The most recent stock certificates were issued on January I, 2017. 
Matter ofS-P-D- Corp. 
Petitioner's size and whether the $1,500 fee or the $750 reduced fee (for petitioners who employ no 
more than 25 full-time equivalent employees) was appropriate. 
V. CONCLUSION 
The Petitioner has not overcome the Director's grounds for denying the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter olS-P-D- Corp .. ID# 661479 (AAO Dec. 26, 2017)