dismissed H-1B Case: Electronics Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 6820825 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "senior verification engineer" under the 
H-lB nonirnmigrant 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 California Service Center Director approved the petition, but later revoked the approval after 
serving a notice of her intent to revoke (NOIR) it. In the revocation notice, the Director concluded 
that the Petitioner had not established that specialty occupation work was available for the Beneficiary 
when the petition was filed, and that the position did not qualify as a specialty occupation. In a 
subsequent notice for the Petitioner's motion to reopen and motion to reconsider the decision , the 
Director dismissed the motions and concluded that the Petitioner had not overcome the reasons for 
revocation. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
I. SPECIAL TY 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. 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
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). We have consistently interpreted the term "degree" 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 384, 387 (5th Cir. 2000). 
B. Analysis 
The Director's statements in the NOIR noting deficiencies in the record at the time of filing were 
sufficient to notify the Petitioner of her intention to revoke the approval of the petition in accordance 
with the provisions at 8 C.F.R. § 214.2(h)(ll)(iii). 3 After reviewing the Petitioner's response to the 
NOIR, the Director concluded in her revocation notice that the Petitioner did not establish that the 
Beneficiary would be employed in a specialty occupation according to the terms and conditions 
specified in the petition. Specifically, the Director cited to the ground for revocation at 8 C.F.R. 
§ 214.2(h)(l l)(iii)(2) and discussed her reasons for concluding, based upon a review of the record and 
3 U.S. Citizenship and Immigration Services (USCTS) may revoke the approval of an H-1 B petition pursuant to 8 C.F.R. 
§ 214.2(h )(11 )(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of intent to revoke 
the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the 
petition; or 
(2) The statement of facts contained in the petition ... was not true and correct, inaccurate, 
fraudulent or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
( 4) The petitioner violated requirements of section 101 (a)(l5)(H) of the Act or paragraph 
(h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or involved gross 
error. 
2 
new information that was unavailable at the time of the petition approval, that the statement of facts 
contained in the petition was not true and correct; but rather was inaccurate, fraudulent or 
misrepresented material facts. 4 For the reasons that we will discuss, we agree. 5 
Considering the evidence presented in the petition, we conclude that the Petitioner has willfully and 
fraudulently misrepresented material facts specific to this petition. The Petitioner filed the H-lB 
petition on September 14, 2017, indicating in part 5. of the petition that the Beneficiary will not "work 
[] off-site at another company or organization." 6 In signing the petition, the Petitioner attested "I have 
reviewed this petition and that all of the information contained in the petition, including all responses 
to specific questions, and in the supporting documents, is complete, true and correct." 
The Petitioner designated the proffered position on the labor condition application (LCA) 7 as a 
Standard Occupation Classification (SOC) code 17-2072 "Electronics Engineers, Except Computer" 
occupation with a Level II wage, and identified the Beneficiary's proposed work location on the 
petition and in the LCA at its offices located inl II California. The Petitioner described the 
duties of the proffered "senior verification engineer" position, as follows: 
• Responsible for development and functional verification of AXI, PCie, Ethernet 
based verification IPs, ASICs and SOCs (20%); 
• Involve in test bench, test suite development, bus protocol checker, transaction 
level checking and performance modeling (20%); 
• Perform constrained and random testing and code/functional coverage driven 
verification (20%); 
• Develop and maintain verification IP development using System Verilog, Verilog 
HDL, UVM (10%); 
• Utilize Verilog HDL, System Verilog, and other scripting languages to create 
verification environment, functional models and to verify designs (10%); 
• Perform RTL design and gate level simulation (10%); and 
• Develop corresponding test plans, designing and developing components of 
verification environment, and applying these to verify complex designs until 
coverage goals are achieved (10%); 
4 The Director also cited to the ground for revocation at 8 C.F.R. § 2 l 4.2(h)(l l )(iii)( 4), determining that the Petitioner had 
violated the requirements of section 101 (a)(l5)(H) of the Act or paragraph (h) of this section. However, she did not discuss 
the specific requirements that the Petitioner violated in section 10l(a)(l5)(H) of the Act or 8 C.F.R. § 214.2(h) in her 
revocation notice, or in her notice dismissing the Petitioner's subsequently filed motions. Therefore, we withdraw this 
ground for revocation. 
5 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
6 The Petitioner also indicated in part 4. of the H- JB and H-1 BI Data collection and Filing Fee Exemption Supplement 
submitted with the petition that the Beneficiary will not be "assigned to work at an off-site location for all or part of the 
period for which H-1 B classification [is] sought." 
7 A petitioner submits the LCA to the U.S. Department of Labor 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 duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
3 
Notably, the Petitioner did not initially provide evidence regarding the specific in-house projects that 
the Beneficiary would be assigned to, but instead described the in-house project work that will require 
the Beneficiary's services, as follows: 
[T]he Beneficiary will perform specialized services at the Petitioner's headquarters, 
located [inl I California]. It may be noted that the Beneficiary will be working 
on projects assigned by the Petitioner as per their own internal requirements and will 
not be stationed outside the Petitioner's premises. 
At present the Petitioner has been retained by several clients to provide specialized 
services. The Company has developed a revolutionary new approach in Verification 
IP space: the Verification Engine, Interface Inspector and Test Suite. This solution is 
optimized from the ground up to dramatically accelerate and simplify verification tasks. 
With the Verification Engine and reports from Interface Inspector it is easy to identify 
bugs by running the comprehensive test suite and accomplish 100% coverage goals. 
The Director issued a request for evidence (RFE) seeking evidence sufficient to demonstrate that the 
Beneficiary would be employed in a specialty occupation working on specific projects at the 
Petitioner's office location and other supporting evidence to establish the duties of the position. 8 The 
Director further noted that the purchase order initially submitted was insufficient to establish the nature 
of the Beneficiary's work at the Petitioner's office location because the purchase order was for off­
site employment, and the document did not specify or describe the engineering related services to be 
provided under that work assignment. The Director observed that without further evidence, the record 
did not demonstrate the nature of the in-house services that the Beneficiary would perform, and that a 
specific project exists for the Beneficiary to work on at the start of the requested period of employment. 
In response to the Director's RFE, the Petitioner reiterated the job duties initially provided with the 
petition in its April 2018 letter, and also stated: 
Primarily, the Beneficiary will be performing [] specialized duties working on the 
ongoing long-term in-house project for the [end-client (T-A-)] at the Petitioner's 
headquarters located at [the Petitioner's address specified on the LCA]. ... [The 
Beneficiary will attend] [w]eekly [m]eeting[s] with [the Petitioner's project manager], 
team members and DV lead for update on progress of tasks to communicate verification 
progress, verification results, and other relevant information to project stakeholder and 
management. As proof of the long-term specialty occupation work that is available, 
attached as Exhibit 5 is the Master Service Agreement [MSA] between the Petitioner 
and [T-A-]. 
8 USCTS 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, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the 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. 
4 
As further proof of the Petitioner's need for the Beneficiary's specialized services, 
please see the client letter from [T-A] stating the client's need for the Beneficiary's 
[services], indicating that the Beneficiary [will work] at the Petitioner's headquarters, 
stating the long-term need for his services .... Moreover, please see the statement of 
work attached as Exhibit 7 demonstrating the [T-A-'s] need for the Beneficiary's 
[services] on a long-term basis, detailing the Beneficiary's specialized duties, and 
detailing [T-A-' s] educational requirement. 
The Petitioner provided a copy of T-A's July 2016 MSA with the Petitioner which stated that the 
Petitioner will provide "engineering services as more fully described in the Schedule A. The 
accompanying Schedule A described the Petitioner's services as "[T-A] ethemet MAC, PCS, FEC IP, 
and Interlaken support services for customer issues reported by [T-A-] customers." The MSA's 
Schedule B specified that starting on August 1, 2016, "[the Petitioner] will provide a team of 
HP/ASIC/SOC Verification Engineers[] for supporting customer issues." T-A-'s September 1, 2017 
letter indicated: 
[T-A-] has an ongoing requirement for the [Beneficiary's] services [to] perform 
verification work with our [T-A] products group. The work will be performed at [the 
Petitioner's office location] .... We would like to highlight that [T-A] estimates the 
need for [ the Beneficiary's] services for up to possibly two years .... We look forward 
to working with him in the long term, for the continued successful implementation of 
our projects through [the Petitioner] pursuant to specific terms and periodic contact 
[sic] renewals. 
Additionally, the Petitioner provided T-A-'s statement of work (SOW) which specified that the 
Beneficiary will provide "[d]esign verification services for [T-A-'s] Ethernet, Interlaken Cores and 
any integrated FPGA, ASIC, and SOC related to these cores," with a service start date from September 
1, 2017 and a services completion date of October 1, 2020. After reviewing the evidence initially 
provided and submitted in the RFE response, the Director approved the petition on May 4, 2018. 
On August 9, 2018, an immigration officer (IO) with United States Citizenship and Immigration 
Services (USCIS) called T-A-'s vice president! I (N-K-), to verify the validity of the 
documents submitted in support of the petition, and to verify if there was actual in-house work 
assignments available for the Beneficiary to complete at the Petitioner's offices on T-A-'s behalf. 
After telephonic and email communications with N-K-, the IO determined that the Petitioner's claimed 
in-house project for T-A- that was presented by the Petitioner in the petition as an "ongoing long-term 
in-house project" that the Beneficiary would be "primarily" assigned to had not yet started. The IO 
requested relevant information from N-K- about the project, such as the project name, a short project 
description, the start and expected end dates for the Beneficiary's project assignment, his duties and 
responsibilities therein, and the number of the Petitioner's contract employees that were required to 
complete the project. In response, N-K- asserted that T-A- has "a direct, contractual relationship for 
engineering services" with the Petitioner. However, N-K- was unable to describe the substantive 
nature of the "ongoing" in-house project that the Beneficiary would be assigned to; instead, he 
indicated that "the project is still not clearly defined, so I cannot provide details on start dates, number 
of people, etc." 
5 
USCIS preliminarily determined based on the results of these in-house project verification efforts that 
the Petitioner materially misrepresented the existence of its claimed "ongoing long-term in-house 
project" with T-A- that the Beneficiary would be "primarily" assigned to according to its April 2018 
letter, as well as within other evidence submitted in response to the Director's RFE. For instance, 
while N-K-, the signatory of the September 1, 2017 end-client letter, indicated therein that T-A- "has 
an ongoing requirement for the [Beneficiary's] services [to] perform verification work with our [T-A] 
products group," and "[t]he work will be performed at [the Petitioner's office location]," he indicated 
in his response to the IO nearly a year later that "the project is still not clearly defined, so I cannot 
provide details on start dates, number of people, etc." This new information is also incongruent with 
the information presented in T-A-'s MSA Schedule B, which specified that starting on August 1, 2016, 
"[the Petitioner] will provide a team of IIP/ ASIC/SOC Verification Engineers" to work on projects for 
T-A- generally; and, in T-A-'s SOW which was specific to the Beneficiary's proposed assignment to 
T-A-'s in-house project at the Petitioner's location for a three-year period commencing in September 
2017. Notably, the SOW was signed by N-K- on behalfofT-A-, and by the Petitioner's CEO,I I 
I I 
The Director issued a NOIR on September 4, 2018 in which she paraphrased portions of the material 
memorializing the results of the USCIS' communications with N-K-, which we have outlined and 
discussed above. As previously discussed, she also concluded based upon a review of the record and 
new information that had not been available at the time of the approval of the petition, that the 
statement of facts contained in the petition was not true and correct; but rather was inaccurate, 
fraudulent or misrepresented a material fact. 9 
The Director also observed that the duties of the position must be evaluated based upon the nature and 
complexity of the actual job duties to be performed for the employer; that due to the discrepancies in 
the record the Petitioner had not established that the Beneficiary would be engaged in providing in­
house services for T-A- as presented in the petition; and, that the record at the time of the issuance of 
the NOIR did not demonstrate the specific duties that the Beneficiary would perform under contract 
for the Petitioner's clients. She noted that absent evidence of the in-house projects which the 
Beneficiary is to work on, the Petitioner had not established the existence of specialty occupation­
caliber work for the Beneficiary for the period of employment. She notified the Petitioner that it must 
resolve any inconsistencies in the record with independent, objective evidence; and that any attempts 
to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where 
the truth lies, would not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The Director 
afforded the Petitioner with the opportunity to submit additional information, evidence or arguments 
to support the petition. 10 
In response to the Director's NOIR, the Petitioner acknowledged that USCIS had contacted N-K- and 
indicated the Beneficiary "is not working on any projects for [T-A-] and that the project that was listed 
within the end-client letter has not yet started." The Petitioner further indicated that it maintained in 
the petition that "the Beneficiary will be working on projects assigned by the Petitioner as per its own 
internal requirements," and that the Petitioner had several in-house projects. It resubmitted T-A-'s 
9 See 8 C.F.R. § 2 l 4.2(h)(l l )(iii)(A)(2). 
10 See 8 C.F.R. § 214.2(h)(l l)(iii)(B). 
6 
MSA, SOW, and September 2017 letter, emphasizing that in its response to the Director's RFE, it 
stated "that the Beneficiary will be working on the in-house T-A- project." The Petitioner noted that 
the petition was not approved until May 4, 2018, and that the Beneficiary did not arrive in the United 
States until August 24, 2018. The Petitioner then presented a new employment opportunity for the 
Beneficiary, as follows: 
As business requirements changed in this instance, which is common in the Petitioner's 
business, the Beneficiary began working for one of the Petitioner's clients, [G-], located 
at [], within the same metropolitan statistical area [MSA] as the Petitioner's 
headquarters .... The Petitioner relied on its contract with T-A- when it filed this 
petition. However, once the Petitioner's business requirements changed and the 
Beneficiary arrived in the U.S. on August 24, 2018, the Petitioner immediately placed 
the Beneficiary at its client [G-'s] location within the [MSA] and filed an amendment 
petition. 11 
After reviewing the Petitioner's response to the NOIR, the Director acknowledged that the Petitioner 
had placed the Beneficiary at a new off-site end-client assignment after his entry into the United States, 
but concluded in her revocation notice that the statement of facts contained in the petition or on the 
application for an LCA was not true and correct; but rather was inaccurate, fraudulent or 
misrepresented a material fact. 12 Though requested by the Director in her NOIR, the Petitioner did 
not submit probative, objective evidence sufficient to address and overcome the material 
inconsistencies present in the record. 13 
The Petitioner acknowledged in its NOIR response that it "relied on its contract with T-A- when it 
filed this petition," and asserted that its "business requirements changed" when the Beneficiary entered 
the United States. However, the Petitioner has not submitted probative evidence to verify that it had 
ongoing in-house project work that required the Beneficiary's services as presented in the petition. 
Put simply, the Petitioner has not established that there has been a change in its business requirements. 
Rather, the Petitioner has not substantiated its claims that it had specific in-house project work for the 
Beneficiary to begin with. The foregoing raises unanswered questions regarding the petition's overall 
reliability in establishing the nature of the proffered position and in what capacity the Beneficiary would 
be employed. 14 This adversely weighs against the Petitioner's eligibility in this petition and undermines 
its assertions that the position qualifies as a specialty occupation. As a result, the Petitioner has not 
sufficiently demonstrated (1) the actual work that the Beneficiary would perform; (2) the complexity, 
uniqueness and/or specialization of the tasks; and/or (3) the correlation between that work and a need for 
a particular level of knowledge in a specific specialty. 
On appeal, the Petitioner highlights that the Beneficiary did not enter the United States until August 
24, 2018, and contends that "the Beneficiary was not able to come to the United States until [after] 
USCIS' phone call with N-K-," and "was not yet in the United States to begin his specialized work" 
at that time. Here, the Petitioner provided evidence prior to the approval of the petition indicating that 
11 According to USCTS records as of March 20, 2020, the amendment petition remains pending. Seel 
12 See 8 C.F.R. ~ 214.2(h)(l l)(iii)(A)(2). .__ ____ ___, 
13 The Petitioner still must resolve these inconsistencies in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho. 19 l&N Dec. at 591-92. 
14 Id. 
7 
the T-A- in-house project was "ongoing," which does not suggest that the commencement of T-A-'s 
in-house project was predicated on the Beneficiary's arrival to provide services. Notably, after the 
Beneficiary entered the United States as an H-lB nonimmigrant, the Petitioner assigned the 
Beneficiary to work off-site for a different end-client, not to provide services on its claimed in-house 
projects. It is the petitioner's burden to establish eligibility for the benefit sought at the time of filing 
the petition, not at some later date, such as after a visa petition is approved and a beneficiary arrives 
to commence work as a nonimmigrant. 15 Therefore, the Petitioner's arguments in this regard are not 
persuasive. 16 
We note that the misrepresentation of a material fact may lead to multiple consequences in 
immigration proceedings. First, as an evidentiary matter, the misrepresentation may impact the review 
and adjudication of the visa petition or immigration application. Ifwe do not believe that a fact stated 
in the petition is true, we may reject that assertion. See section 214(c)(l) of the Act, 8 U.S.C. § 
1184(c)(l); cf Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Anetekhai v. INS, 876 
F.2d 1218, 1220 (5th Cir. 1989). The Petitioner's submission of false statements may also call into 
question the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. See Matter of Ho, 19 I&N Dec. at 591-92. Next, a material misrepresentation that is 
determined to have been willful under section 212(a)(6)(C) of the Act may make an individual 
ineligible to receive a visa and ineligible to be admitted to the United States. See, e.g., Forbes v. INS, 
48 F.3d 439, 442 (9th Cir. 1995). Finally, a finding of willful, material misrepresentation may lead to 
criminal penalties. See 18 U.S.C. §§ 1001, 1546; see also United States v. O'Connor, 158 F. Supp.2d 
697 (E.D. Va. 2001). 
In summary, the Petitioner has not sufficiently addressed the material inconsistencies in the record. 
Namely, that prior to the approval of the petition it asserted that T-A-'s in-house project was in 
progress at its office location, and that the Beneficiary would be "primarily" engaged in providing 
services in the furtherance of this project. By the Petitioner's own admission, it "relied" on these 
assertions and the relating supporting evidence to demonstrate eligibility for the approval of the 
petition. After the approval of the petition, USCIS learned that the claimed T-A- project was not yet 
"clearly defined," and the T-A- in-house project work had yet to commence. The Petitioner does not 
dispute the accuracy of this information on appeal. While the Petitioner alludes to the availability of 
other in-house project work for the Beneficiary at the time of filing the petition, such projects are not 
sufficiently discussed or documented in the record. Therefore, we conclude that the Petitioner has not 
established that it had definitive specialty-occupation employment available to the Beneficiary when 
it filed the petition. A petitioner must establish eligibility at the time of filing a nonimmigrant visa 
petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 
17 I&N Dec. 248 (Reg'l Comm'r 1978). 
15 A petitioner must establish eligibility at the time of filing a nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). See 
also Matter of Katigbak, 14 l&N Dec. 45, 49 (Comm'r 1971) (providing that "Congress did not intend that a petition that 
was properly denied because the Beneficiary was not at that time qualified be subsequently approved at a future date when 
the Beneficiary may become qualified under a new set of facts."). 
16 The Petitioner raised similar arguments in support of its motion to reopen and motion to reconsider, filed with the 
Director after the revocation of the petition, which the Director dismissed in accordance with 8 C.F.R. §§ 8 C.F.R. 
103.5(a)(3),(4). See WAC! 990155774. 
8 
It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit 
sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility is to be 
determined not by the quantity of evidence alone but by its quality. Id. The Petitioner has not done 
so here. Accordingly, we affirm the Director's revocation of the petition in accordance with 8 C.F.R. 
§ 214.2(h)(l l)(iii)(2). 17 
II. CONCLUSION 
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. The Petitioner has not met that burden here, 
and the petition will remain revoked. 
ORDER: The appeal is dismissed. 
17 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
9