dismissed H-1B Case: Electrical Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF W-W-S- INC. DATE: JAN. 5, 2017 
APPEAL OF VERMONT SERVICE CENTER 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)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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, Vermont Service Center, denied the petition. The Director concluded that the Petitioner 
did not establish that it will have a valid employer-employee relationship with the Beneficiary. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Beneficiary is gainfully employed by the Petitioner's newly acquired company. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), 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 Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212( n )(I) .... 
Matter of W- W-S- Inc. 
The term"United States employer" is defined at 8 C.F.R. § 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the, United States; 
(2) Has an employer-employee relationship with re.spect to employees 
under this part, as indicated by the fact that it may hire, pay, .fire. 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H -1 B visa 
classification. Therefore, in considering whether or not one will be an "employee" in an "employer­
employee relationship" with a "United States employer" for purposes of H-1 B nonimmigrant 
petitions, U.S. Citizenship and Immigration Services (USCIS) will look to common-law agency 
doctrine and focus on the common-law touchstone of "control." See Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318 (1992); Clackamas Gastroenterology Assocs .. P. C. v. Wells, 538 U.S. 440 
(2003). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 
538 U.S. at 445; see also Restatement (Second) of Agency § 220(2) (1958) (defining "servant"). 
Such indicia of control include when, where, and how a worker performs the job; the continuity of 
the worker's relationship with the employer; the tax treatment of the worker; the provision of 
employee benefits; and whether the work performed by the worker is part of the employer's regular 
business. See Clackamas, 538 U.S. at 445; see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a 
materially identical test and indicating that said test was based on the Darden decision); Defensor v. 
Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the recipients of 
beneficiaries' services, are the "true employers" of H-lB nurses under 8 C.F.R. § 214.2(h), even 
though a medical contract service agency is the petitioner, because the hospitals ultimately hire, pay, 
fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are.not exhaustive 
and must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact 
finder must weigh and compare a combination of the factors in analyzing the facts of each individual 
2 
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Matter ofW-W-S- Inc. 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man.at § 2-III(A)(1). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, the Petitioner has not established that it 
will be a "United States employer " having an "employer-employee relationship" with the 
Beneficiary as an H-1B temporary "employee. " 8 C.F.R. § 214.2(h)(4)(ii) . 
1. Beneficiary's Employment as Independent Contractor 
According to the Petitioner's support letter and other record evi9ence , the Beneficiary has been 
working for the Petitioner (including its acquired company , in H-1 B status 
since October 2000. The Petitioner now seeks to extend the Beneficiary ' s employment tor an 
addition~! three years from November 2014 to November 2017. 
However, the record reflects 
that during ·a time period in which the Petitioner claims to have 
continuously employed the Beneficiary, the Beneficiary was self-employed and was performing 
services for the Petitioner as an independent contractor. More specifically , the record contains, inter 
alia, the Beneficiary's 2011-2014 federal tax returns, which indicate that the Beneficiary was self­
employed. Further, the Petitioner filed a Schedule C, Profit or Loss from Business (Sole 
Proprietorship) , listing his principal business or profession as "contract labor" and his business 
address as his home address .' Each tax return is accompanied by the Beneficiary 's Form 1099-
MISC, Miscellaneous Income , for that year, all of which were issued to him by the Petitioner for the 
total amount of business income claimed on his tax return. These documents reflecting that the 
Beneficiary was self-employed and was providing services to the Petitioner as an independent 
contractor directly undermine the Petitioner's position that it has and will continue to maintain an 
employer-employee relationship with the Beneficiary. 
2. Beneficiary's Employment with 
On appeal, the Petitioner submits payroll registers and related evidence establishing that, smce 
January 2016 to present, the Beneficiar y has been paid as an employee of the company 
(Company A). The Petitioner 
asserts on appeal that it recently acquired Company A and 
is now operating under this company. 
The Petitioner explains that from 2011-2014, its company, experienced 
no new work orders and had "limited residual work which was kept going by the [Beneficiary]. " 
The Petitioner further explains (verbatim): 
1 The Beneficiar y' s tax returns were prepared by a profe ssional accounting firm. 
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Matter ofW-W-S-Inc. 
Finally, in 2015 we found some engineering support work with in design, 
analysis and software development. wanted to use the expertise we provided 
under the leadership of [the Beneficiary]. However, [the Petitioner] was not an 
approved source for and the customer wanted our expertise badly. 
suggested that [Company A] is an approved source and if [the Petitioner] acquire that 
company which was a dormant company at that time. So we had to operate under the 
[Company A]. We have now 12 direct employees under the leadership of [the 
Beneficiary]. [The Beneficiary] is the supervisor for all the 12 employees. 
Since [the Petitioner] bought [Company A] and we are operating as [Company A] 
because of this special circumstances, this is not another company. It is only a 
continuation ofthe same company [the Petitioner]. 
We are enclosing the payroll of all the employees since January 2016 till this time. 
[The Beneficiary] was gainfully employed at the time of denial of petition 1-129 
on April13, 2016. 
We find the Petitioner's explanations and evidence regarding its claimed acquisition of Company A 
insufficient to demonstrate the existence of a valid employer-employee relationship with the 
Beneficiary. 
First and foremost, we find the evidence of record insufficient to establish that the Petitioner 
acquired Company A. As evidence of this claimed acquisition, the Petitioner submitted a one-page 
"Agreement," dated November 30, 2015, between the Petitioner ("buyer") and Company A and its 
sole shareholder, (collectively the "seller"). This "Agreement" states in pertinent part: 
The parties have reached an understanding with respect to the sale and purchase of all 
the outstanding corporate share which is engaged in Engineering Support Services. 
[Company A], is a dormant corporation and has been pursuing engineering support 
contract. But with the help of [the Petitioner] and [the Beneficiary], we were granted 
a contract from who is a subcontractor for in Alabama. 
They have the experience and expertise to provide engineering support services. The 
sale is contingent upon awarding the contract. This will give a boost to the and 
we will be able to hire 20 employees. 
It is therefore agreed: 
1. Sale of Corporate Shares. Therefore, the seller shall sell the shares of 
for the purchase price of $100.00 
2. Closing of the sale shall take place at the office located at . 
Alabama. The new offices of [the Petitioner] shall 
be in the same building. 
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Matter of W- W-S- Inc. 
Upon close review of the language in this "Agreement," we find that it does not establish a legally 
binding contract for the sale and acquisition of Company A by the Petitioner. Instead, the agreement 
states that the "sale is contingent upon awarding the contract." Notably, this document does not list 
a closing date. Further, the purchase price for Company A is not consistent with the represented 
value of its stock. According to this agreement , the Petitioner will purchase Company A· s corporate 
shares for a total purchase price of $100. However , Company A' s articles of incorporation 
specifically set the company ' s 5000 shares at a par value of$1.00 per share, which should amount to 
a total purchase price of $5000 for all 5000 shares to acquire the company in whole. The Petitioner 
has not explained its purchase price of $100 in light of this information. 2 
.Further still, this agreement is not accompanied by corroborating evidence of the actual purchase and 
transfer of ownership, such as stock certificates , stock ledgers, board meeting minutes, and financial 
documentation. The record does not contain evidence confirming that was the sole 
shareholder and owner of all Company's A stock, and that he transferred all his shares to the 
Petitioner pursuant to this agreement. Nor is there evidence that Company A was actually awarded 
the contract upon which the entire agreement is contingent. A petitioner 's unsupported statements 
are of very limited weight and normally will be insufficient to carry its burden of proof, particularly 
when supporting documentary evidence would reasonably be available . See Matter of So.ffici, 22 
I&N Dec. 158, 165 (Comm'r 1998).(citing Matter ofTreasure Craft ofCal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter ofChawathe , 25 I&N Dec. 369, 376 (AAO 2010). 
Because the record does not sufficiently demonstrate that the Petitioner wholly acquired Company A 
as claimed, we cannot conclude that the Petitioner has and will maintain an employer-emplo yee 
relationship 
with the Beneficiary by virtue of his current employment with Company A. · 
Assuming arguendo that the Petitioner acquired Company A on or after November 30, 2015, the 
record still does not establish that the Petitioner has, as of the date of filing, an employer-employee 
relationship with the Beneficiary. USCIS regulations 
affirmatively require a petitioner to establish 
eligibiHty at the time the petition is filed. 8 C.F.R. § 1 03.2(b)(l). 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). 
Here, the Petitioner only claims to have "gainfull y employed" the Beneficiary "at the time of denial 
of petition 1-129 on April13, 2016 (emphasis in the original)." The Petitioner does not claim, nor 
does the record demonstrate, that the Beneficiary was gainfully employed by the Petitioner on 
2 The Petitioner repeatedl y characterizes Compan y A as a "dormant corporation ," but has not further explained what it 
means by this term . 
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Matter of W- W-S- Inc. 
November 24, 2014, when the instant petition was filed. As discussed, the tax returns in the record 
indicate that the Beneficiary was self-employed and was providing services to the Petitioner as an 
independent contractor in 2014. The Beneficiary's employment at the time of the petition's denial is 
not sufficient to establish eligibility at the time of filing. 
3. Beneficiary's Assignment to the End-Client, 
Furthermore, the Petitioner has not demonstrated that it will have and maintain a valid employer­
employee relationship with the Beneficiary by virtue of his assignment to the end-client, 
As previously indicated above, the Petitioner states that since 2015, the Beneficiary has been 
providing "some engineering support work with [the end-client] in design, analysis and software 
development." The Petitioner does not indicate that the Beneficiary will be working on any 
assignments other than for this end-client. According to the claimed acquisition agreement, the 
Beneficiary's services to this end-client are provided through a mid-vendor, 
But the Petitioner has not provided sufficient information and evidence about the Beneficiary's 
assignment to the end-client. For instance, the record does not contain additional details and 
documents demonstrating the nature, location, and length of his work for the end-client. There are 
no work orders, service contracts, or other objective evidence directly from the end-client 
establishing his job duties, work location, assignment dates, who his supervisor is, and other material 
terms and conditions of his assignment. The record also does not contain information and evidence 
from the mid-vendor conveying its role in administering the end-client contract. 
Given this specific lack of evidence, the Petitioner has not established 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 and will maintain an 
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-1B nonimmigrant worker). Again, a 
petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof, particularly when supporting documentary evidence would reasonably be 
available. See Matter ofSo.ffzci, 22 I&N Dec. at 165; see also Matter ofCha-.,vathe, 25 I&N Dec. at 
376 (the petitioner must support its assertions with relevant, probative, and credible evidence). 
For all of the reasons specified above, the record does not demonstrate that the Petitioner has and 
will continue to have a valid employer-employee relationship with the Beneficiary. 
6 
Matter of W- W-S- Inc. 
II. 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. 
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. Chertoff, 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 at 387. 
Furthermore, in cases where a beneficiary performs services other than for the petitioning entity, it is 
necessary for the end-client to provide sufficient information regarding the proposed job duties to be 
performed at its location(s) in order to properly ascertain the minimum educational requirements 
necessary to perform those duties. See Defensor v. Meissner, 201 F.3d at 387-88. In such cases, 
petitioner-provided job duties and requirements, alone, are insufficient to demonstrate that a 
particular position qualifies as a specialty occupation determination. See id. 
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(b)(6)
Maper of W- W-S- Inc. 
B. Analysis 
Here, the record of proceedings is devoid of sufficient information from the end-client regarding the 
specific job duties to be performed by the Beneficiary for that company. Although on appeal the 
Petitioner provides a brief summary of the Beneficiary's job duties for the end-client , without 
corroborating evidence from the end-client or other objectively reliable evidence, we cannot rely on 
these brief descriptions alone.. See id. (petitioner-provided job duties and requirements are 
insufficient); Matter ofSojjici, 22 I&N Dec. at 165 (a petitioner's unsupported statements are of very 
limited weight); .Matter of Chawathe, 25 I&N Dec. at 376 (a petitioner must support its assertions 
with relevant, probative, and credible evidence). 
Even if we were to consider the Petitioner's descriptions, we still find them insufficient to 
demonstrate the substantive nature of the Beneficiary's work for the end-client. 
In particular , the Petitioner states that it is providing "some engineering support work with in 
design, analysis and software development. " The claimed acquisition "Agreement" simply describes 
the services to the end-client as "engineering 
support services." Aside from these brief descriptions, 
however, the record does not contain other information about the Beneficiary's specific job duties. 
It is not evident whether the Beneficiary's job duties for the end-client are the same as the job duties 
initially listed in the H-lB petition, which was filed before the Beneficiary's assignment to this 
particular end-client. Without more, the record of proceedings does not demonstrate the nature of 
the Beneficiary's job duties for the end-client , and moreover, the level of knowledge required to 
perform them. 
In fact, it appears that the Beneficiary's job duties are different from those initially listed in the H-1 B 
petition. The Petitioner now asserts that the Beneficiary is the direct supervisor of 12 employees 
assigned to the end-client. But the Petitioner's initial description of the proffered job duties did not 
include any supervisory duties. Additionally, the certified labor condition application (LCA) 
submitted to support the instant petition is for a Level I (entry) position. Through this Level I wage 
rate designation, the Petitioner indicated that the Beneficiary's position is a beginning, entry-level 
position that requires only a basic understanding of the occupation. 3 The wage-rate element of the 
3 The " Prevailing Wage Determination Policy Guidance " issued by Department of Labor describes a Level I wage rate as 
follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic 
understanding of the occupation. These employees perform routine ta sks that require lirttited, if any, 
exercise of judgm ent. The tasks provide experience and familiarization with the employer's methods , 
practices, and programs. The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific instructions on required tasks 
and results expected . Their work is closely monitored and reviewed for accuracy. Statements that the job 
offer is for a research fellow , a worker in training , or an internship are indicators that a Level I wage should 
be considered. 
U.S. Dep't of Labor, Emp't & Training Admin. , Prevailing Wage Determination Policy Guidance , Nonagric . 
8 
Matter of W- W-S- Inc. 
LCA selected by the Petitioner conflicts with the Beneficiary's claimed present supervisory duties. 
It is incumbent upon the Petitioner to resolve inconsistencies in the record by independent objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Doubt cast on any aspect of the 
petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. !d. 
The above discrepancies and deficiencies preclude us from understanding the substantive nature of 
the proffered position and the work actually performed by the Beneficiary. Therefore, we are 
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 proffered 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, the record does not 
demonstrate that the proffered position qualifies as a specialty occupation. 
III. LCA 
We also find that the Petitioner has not submitted an LCA that corresponds to and supports the 
petition. Differently stated, the Petitioner has not demonstrated that it has and will continue to 
comply with the terms and conditions of the certified LCA. 
A. Legal Framework 
General requirements for filing immigration applications and petitions are set forth at 8 C.F.R. 
§ 103.2(a)(1) 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." 
The regulations require that before filing an H -1 B petition, a petitioner obtain a certified LCA from 
the Department of Labor (DOL) in the occupational specialty in which the H-lB worker will be 
employed. See 8 C.F.R. §§ 214.2(h)(4)(i)(B), 214.2(h)(4)(iii)(B)(J). The instructions that 
accompany the H-1 B petition form also specify that a petition must be tiled with evidence that an 
LCA has been certified by DOL. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_2009.pdf. 
9 
(b)(6)
Matter of W- W-S- Inc. 
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 H-1 B petition actually supports that petition. The regulation at 20 C.F.R. 
§ 655.705(b) states, in pertinent part (emphasis added): 
For H-1B visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL certified LCA attached. In doing so, the DHS determines whether the petition is . 
supported by an LLA which correspondr; 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 statutory requirements of H-1 B visa classification. 
The regulation at 20 C.F.R. § 655.705(b) therefore requires that USCIS ensure that an LCA actually 
supports the H-lB petition filed on behalf of the Beneficiary. 
In addition, the regulation at 20 C.F.R. § 655.731 separately governs an H-IB petitioner's wage 
obligations with respect to the LCA. This regulation generally requires that the H-1 B employer fully 
pay the LCA-specified H-lB annual salary: (1) "cash in hand, free and clear, when due" (except for 
authorized deductions); and (2) as payments reported as the employee's earnings, with appropriate 
withholdings for the employee's taxes, to the Internal Revenue Service ([RS) and all other 
appropriate federal, state, and local governments in accordance with any other applicable law. See 
20 C.F.R. § 655.731(c). 
B. Analysis 
The certified LCA submitted to support the instant petition is for a Level I, entry-level position 
under the "Electrical Engineers" occupational category, corresponding to standard occupational 
classification code 17-2071. Consistent with the information initially provided on the instant 
petition, the LCA reflects that the Beneficiary will only work at the Petitioner's business premises in 
Alabama The certified LCA is valid for the duration of the requested 
validity period, from November 30, 2014, through November 29, 2017. 
But as stated above, the record reflects that since 20 15, the Beneficiary has been working for an 
end-client at an unspecified location to perform unspecified duties, some of which appear 
inconsistent with the Level I wage rate indicated on the LCA (by virtue of the Beneficiary's current 
supervisory duties). The Beneficiary's provision of services for an entity other than the Petitioner, at 
a location other than the Petitioner's premises, and for job duties inconsistent with a Level I 
"Electrical Engineers" position, are not in compliance with the terms and conditions of the certified 
LCA. 
Moreover, the Petitioner has not complied with the terms and conditions of the certified LCA with 
respect to the Beneficiary's wages. The Petitioner has not complied with the LCA obligations to pay 
the Beneficiary the required wages. See 20 C.F.R. § 655.73l(c). 
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Matter of W- W-S- Inc. 
The Petitioner attested on the LCA and the H-1B petition that it will pay the Beneficiary, as his 
employer, an annual salary of $67,018. This salary is equivalent to an hourly wage rate of $32.22 
per hour, which is the same as the prevailing wage for a full-time Level I "Electrical Engineers" 
position in the Alabama metropolitan statistical area for the time period 07/2014-6/2015. 
But as stated above, the record reflects that from 2011-2014, the Beneficiary earned only $11,000 to 
$12,000 per year for "limited residual work." Specifically, in 2014- a time period covered by the 
instant petition and LCA - the Beneficiary earned $11,855 in nonemployee compensation from the 
Petitioner. His earnings are significantly short of the proffered and required prevailing wage of 
$67,018 per year. Additionally, as the Petitioner paid the Beneficiary in the form of nonemployee 
compensation as an independent contractor (and the Beneficiary reported these wages to the IRS as 
self-employment business income), these earnings further do not satisfy the Petitioner's wage 
requirements set forth at 20 C.F.R. § 655.731(c) (requiring the Petitioner to pay wages in the form of 
employee earnings with appropriate withholdings). 
We acknowledge the recent payroll registers from Company A reflecting that the Beneficiary has 
been remunerated an hourly wage of $32.23 for 40 hours per week since January 2016. However, 
this does not establish that the Petitioner paid the Beneficiary his required wage at the time of filing, 
and during the validity dates of the certified LCA. 
We also do not have evidence that the Beneficiary will continue to receive the same (or higher) 
compensation for the duration of the entire validity period requested (until November 29, 2017). 
Again, the record does not contain work orders, service contracts, or other objective evidence 
directly from the end-client confirming the Beneficiary's assignment dates, pay rate, hours, and other 
material terms and conditions of his assignment. Without such evidence, and in light of the 
Beneficiary's insufficient compensation from 2011 to 2014, we cannot conclude that the Petitioner 
has met its burden of proof in establishing that it has and will continue to pay the Beneficiary the 
required wage, and will otherwise comply with the terms and conditions of the certified LCA. 4 
4 
In the event of a material change to the terms and conditions of employment specified in the original petition such as 
this, a petitioner must file an amended or new petition with USCIS with a new corresponding LCA. 8 C.F.R. 
§ 214.2(h)(2)(i)(E). Furthermore, petitioners 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 they will continue to 
employ the beneficiary, file an amended petition. 8 C.F.R. § 214.2(h)(ll)(i)(A). See generally Matter of Simeio 
Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) (describing a petitioner's obligations to file an amended or new petition 
with a new 
corresponding LCA). 
As of date, the Petitioner did not comply with its obligations to notify USC IS and file a new and amended petition (with 
a new corresponding LCA) to reflect the changes to the Beneficiary's work. 8 C.F.R. § 214.2(h)(2)(i)(E); 8 C.F.R. 
§ 214.2(h)(ll)(i)(A). 
Section 214(c)(l) of the Act provides that an amended H-18 petition shall not be required where the petitioning 
employer is involved in a corporate restru~turing, including an acquisition, and where a new corporate entity succeeds to 
the interests and obligations of the original petitioning employer. Here, however, the Petitioner has not established that 
II 
Matter ofW-W-S- Inc. 
IV. CONCLUSION 
The appeal is dismissed and the petition denied for the above stated reasons, with each considered as 
an independent and alternative basis for the decision. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofW-W-S- Inc., ID# 22933 (AAO Jan. 5, ·2017) 
was exempt from filing a new or amended petition pursuant to section 214(c)(1) of the Act because the Petitioner has 
neither established (I) that it acquired Company A; and (2) that Company A is its successor in interest. As previously 
discussed, the "Agreement" between Company A and the Petitioner is insufficient to demonstrate the occurrence ofthe 
claimed acquisition. This "Agreement" is also silent as to the Petitioner's assumption of Company A's interests and 
obligations. 
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