dismissed H-1B Case: Electrical Engineering

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MATTER OF W-W-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 29, 2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a "manufacturer and repairer of load cells and weighing systems," seeks to extend the 
Beneficiary's temporary employment as an "electrical engineer, load cells division" under the H-1 B 
nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) 
section 101(a)(l5)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b). 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 Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish a valid employer-employee relationship with the Beneficiary. We dismissed the subsequent 
appeal , affirming the Director 's determination on the employer-employee issue. Our decision also 
determined 
that the evidence did not establish ( 1) that the proffered position is a specialty 
occupation, and also (2) that the Petitioner complied with the terms and conditions of the certified 
labor condition application (LCA) and its wage obligations. 
The Petitioner now submits a motion to reopen the proceedings. We will deny the motion. 
I. MOTION REQUIREMENT 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 1 03.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. ANALYSIS 
The motion includes the following new evidence , submitted into the record for the first time: 
• The sales agreement document executed on January 2, 2016, by the Petitioner ' s 
representative (as buyer) and by the sole owner of (Company A) 
stock (as seller), which memorializes "an understanding " between the two parties 
regarding the Petitioner's purchase of all of Company A's shares, so that the Petitioner 
Matter of W- W-S- Inc. 
can gain engineering and support contracts by performing them under Company A's 
name; and 
• Company A's payroll-register documents for the Beneficiary covering all four quarters of 
2016 and the first quarter of 2017. 
However, we find that these documents do not warrant reopening of the proceeding or approval of 
the petition. In our decision dismissing the appeal, we concluded in part, that the Petitioner had not 
established a valid employer-employee relationship with the Beneficiary because the Beneficiary 
was paid by Company A and the Petitioner did not sufficiently demonstrate that it acquired 
Company A. 
Though different in several respects from the earlier-submitted sales-agreement document, including 
stamps indicating it has been filed with a local county probate judge, the motion's later version of 
the agreement does not sufficiently resolve the discrepancies noted in our decision to establish that 
the Petitioner has acquired Company A. For example, the Petitioner does not address the 
contingency clause for sale noted in our decision, but such clause was removed without explanation. 
Further, we noted that the purchase price for Company A is inconsistent with the represented value 
of its stock and that the Petitioner did not submit corroborating evidence of its ownership, but the 
Petitioner did not further supplement the record. 
However, even if the motion's sales-agreement document established that the Petitioner had taken 
control of Company A as of January 2016, 1 and has been doing business under Company A's name, 
that scenario would not remedy the lack of employer-employee relationship as of the date of filing in 
November 2014. 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 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 U.S. Citizenship 
and Immigration Services requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). 
Moreover, significant employer-employee related questions that our decision highlighted about lines 
of authority and degrees of control over the Beneficiary while performing projects for an end-client 
remain unanswered and are beyond the scope of the new evidence presented in support of this 
motion. 
Finally, we also conclude that the motion does not indicate any new facts for our consideration that 
would overcome the specialty-occupation and LCA obstacles to petition approval our decision also 
raised. 
1 Since the Petitioner has not sufficiently established its acquisition of Company A, we need not address whether a 
change to the Petitioner's corporate structure requires a new or amended petition and a new labor condition application. 
See section 214(c)(IO) ofthe Act; 8 C.F.R. § 214.2(h)(2)(i)(D), (E); 20 C.F.R. § 655.730(e)(2). 
2 
Matter of W- W-S- Inc. 
In sum, based upon our review of all of the motion's documents and statements, we conclude that 
they do not establish that reopening the proceedings for consideration of the new facts would result 
in eligibility for the benefit sought. 
ORDER: The motion to reopen is denied. 
Cite as Matter ~fW-W-S- Inc., ID# 960335 Dec. 29, 2017) 
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