dismissed H-1B Case: Engineering

MATTER OF F-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG.1,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a general engineering contracting firm, seeks to temporarily employ the Beneficiary 
as a "civil engineer (energy)" 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. 
§ 110l(a)(l5)(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 California Service Center denied the petition, concluding that: ( 1) the Petitioner 
and another related company filed multiple H-lB petitions for the same Beneficiary; (2) the 
Petitioner has not made a credible offer of specialty occupation employment to the Beneficiary; (3) 
the Petitioner will not have an employer-employee relationship with the Beneficiary; and (4) the 
Beneficiary is not qualified to perform the proffered position. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in her 
determination. 
Upon de novo review, we will dismiss the appeal. 
I. MULTIPLE H-lB FILINGS 
A. Legal Framework 
The regulation at 8 C.P.R. § 214.2(h)(2)(i)(G) prohibits multiple H-1B petitions from being tiled in 
the same fiscal year for the same beneficiary by "an employer," or, under certain circumstances, by 
"related entities." 8 C.P.R.§ 214.2(h)(2)(i)(G) states, in pertinent part: 
An employer may not file, in the same fiscal year, more than one H-lB petition on 
behalf of the same alien if the alien is subject to the numerical limitations of section 
214(g)(l)(A) of the Act or is exempt from those limitations under section 
214(g)(5)(C) ofthe Act. If an H-lB petition is denied, on a basis other than fraud or 
misrepresentation, the employer may file. a subsequent H-1 B petition on behalf of the 
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Matter of F-E-, Inc. 
same alien in the same fiscal year, provided that the numerical limitation has not been 
reached or if the filing qualifies as exempt from the numerical limitation. Otherwise, 
filing more than one H-1 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 [U.S. 
Citizenship and 
Immigration Services (USCIS)] 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)(l)(A) ofthe Act or otherwise eligible for an exemption 
under section 214(g)(5)(C) of the Act, U SCIS 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 filed on that alien's behalf by the 
related entities will be denied or revoked. 
B. Background 
The Petitioner, a general engineering contracting company, filed this petition seeking to employ the 
Beneficiary as a civil engineer (energy) at its office in The Petitioner is wholly 
owned by A-0- 1, who is also the company's only director. The Petitioner has two officers: A-0-
and S-B-. 
Company J, another general engineering contracting company located in also filed an 
H-lB petition seeking to employ the Beneficiary as a civil engineer (energy). According to the 
Petitioner, Company J is majority owned by J-B- (43.7%) and M-B- (51 %), while A-0- has a minor 
ownership interest (2.3%). J-B- and M-B- are Company J's sole officers, and serve as Company J's 
directors along with one other individual, P-B-. 
The Director issued a notice of intent to deny (NOID), findingthat the Petitioner and Company J are 
related entities that filed multiple H-lB petitions for the same Beneficiary in violation of 8 C.F.R. 
§ 214.2(h)(2)(i)(G). In response to the NOID, the Petitioner asserted that it and Company J "are not 
the same employer and are not related entities. They are completely separate entities with different 
owners and different locations." 
The Director denied the petition, and pointed out the following similarities between this and the 
other H-lB petition: 
• Both companies are filing for the same Beneficiary for the same position with the 
same salary and job duties; 
• Both companies are in the same business of providing general engineering 
contracting; 
1 
The names of individual s and companies have been abbreviated . 
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Matter of F-E-, Inc. 
• Both companies are represented by the same attorney and submitted nearly identical 
letters of support and job descriptions; and 
• A-S-, the Petitioner's president, was the beneficiary of two nonimmigrant visa 
petitions and one immigrant visa petition filed by Company J. 
The Director concluded that the Petitioner and Company J are related, and have not established a 
legitimate business need to file multiple H-1B petitions on behalf ofthe Beneficiary. 
On appeal, the Petitioner again states that it is an entirely separate business from Company J. The 
Petitioner reiterates the two companies' different business locations, corporate officers, and business 
operations (e.g., different construction contracts and clients). Although the Petitioner acknowledges 
the companies' common ownership by A-S-, it characterizes his 2.3% ownership of Company J as 
"minimal" and "the full extent of his involvement with that entity." The Petitioner further states that 
the two entities have no "vested interest" in each other in that neither company's officers has any 
financial ties to the other company. 
The Petitioner alternatively argues that, even if the two companies are related, they both have 
legitimate business needs to file separate petitions for the Beneficiary because both require such 
professional services on separate construction contracts. The Petitioner claims that both companies 
made a credible offer of employment to the Beneficiary, stating: 
[I]n fact, Beneficiary would not have worked for both Petitioners. Because the 
chances of being picked for an H-1B visa for Petitioner and [Company J] were fairly 
slim as a result ofthe large number ofH-1B visa applications that were submitted for 
fiscal year 2016, Beneficiary was intending to work for the sponsoring employer 
whose H-1B visa application got selected for a number in the H-1B visa lottery. 
Petitioner never intended to employ the Beneficiary full-time at the same time as 
[Company J] also employing him full-time. Anticipating that the number of H-1B 
petitions would again greatly exceed the allotted quota for the fiscal year, the 
Beneficiary intentionally sought out as many job offers as possible, and planned on 
making his actual decision on what job offer to accept only after knowing if a 
particular petition had been accepted for processing. There is no provision in the 
applicable regulations that prohibits an individual with multiple Job offers from more 
than one company from applying for more than one H-1B petition when the 
Petitioners are separate employers. 
C. Analysis 
1. Related Entities 
We first find that the Petitioner and Company J are "related" entities. 
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Matter of F-E-, Inc. 
As explained by the Director, both companies seek to employ the Beneficiary in the same positi<;m 
with the same job duties, requirements, and salary. Both companies are represented, by the same 
attorney and submitted nearly identical documentation, including identical job descriptions, in 
support of the petitions. Beyond these factors, both companies appear related to each other through 
A-S- and other individuals . 
A-S- owns 100% ofthe Petitioner and 2.3% of Company J. While we agree that, on its face, a 2.3% 
ownership interest is "minimal " in terms of corporate control, we must also consider whether an 
informal relationship exists between A-S- and Company J. In particular , we consider it significant 
that Coinpany J filed two nonimmigrant visa petitions and one immigrant visa petition on behalf of 
A-S-. Thus, it appears that, for an extended period of time, A-S- was (or still is) an employee of 
Company J. The Petitioner has not sufficiently explained this aspect of the relationship between 
A-S- and Company J. The Petitioner's assertion that A-S- "does not serve a~{ an employee" and has 
no other "involvement" with Company J beside his "minimal" ownership interest is not corroborated 
by objective , independent evidence. 
Moreover, the Petitioner has not identified and documented the two other owners of Company J. In 
total, J-B-, M-B-, and A-0- own 97%, but not 100%, of that company's stock. According to its 
federal tax return, Company J has five total shareholders? Whjle the remaining 3% ownership 
interest among the two unidentified shareholders appears "minimal" in terms of corporate control, 
we question why these shareholders' identities were not disclosed and whether they have informal 
relationships with the individuals involved in the Petitioner's operations. 
Additionally, the Director suggested that S-B- (the Petitioner's officer) is related to J-B-, M-B-, or 
both (Company J's owners, officers, and directors). All three individuals share the same last name. 
On appeal, the Petitioner only states that S-B- and J-B "are two different individuals" with "no 
financial ties" to the other's respective company. However, this statement does not address whether 
there exists a familial tie or another type of close relationship between these individuals. 
The Petitioner also does not directly address whether there exists a working relationship between 
these or other significant individuals involved in each company's operations. For example , it 
remains unknown whether the Petitioner and Company J share any critical employees or personnel. 
We again recall A-S- 's prior (or current) employment with Company J.3 We also consider the 
identical nature of the job offers and the Petitioner and Company J's use of the same attorney to file 
for the proffered position. 4 All of these factors further suggest that Petitioner ,and Company J are 
"related" to each other. 
2 The Petitioner omitted the pages of its federal tax return identifying these two shareholders . 
3 
Although not noted by the Director , we now observe that, according to information found on the Internet, the 
Beneficiary worked (or still works) for Company J. For example, the Beneficiary is listed as Company J's point of 
contact for bids submitted to the City of California. City of 
http:/ (last visited July 31 , 20 17). 
4 
The Petitioner and Company J even the use the same accountant to file their corporate taxes. 
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Matter of F-E-, Inc. 
To say that an entity is "related" to another, under the ordinary meaning of the word, is to say that 
some sort of connection exists between the two.5 The connection between the two entities does not 
have to be a legal, corporate relationship such as an affiliate, subsidiary, or parent relationship. 
Looking to the language of 8 C.F.R. §214.2(h)(2)(i)(G), the term "such as" is critical to supporting a 
broad interpretation of what can qualify two or more companies as "related entities." The term 
"such" introduces a kind or character about to be indicated, suggested, or exemplified; in other 
words, it introduces examples of what may be considered "related entities."6 The regulation at 
8 C.F.R. § 214.2(h)(2)(i)(G) therefore 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. 
In other words, merely demonstrating that the Petitioner and Company J are not owned or 
corporately controlled by the same individuals, i.e., that they are not affiliates or a parent/subsidiary 
company, is insufficient to demonstrate that the companies are not "related" to each other. We find 
sufficient factors in this case, including the duplicative nature of the proffered positions and A-S-'s 
prior employment with Company J (among other relevant facts), to support the finding that the 
Petitioner and Company J are "related." 
In promulgating the regulation at 8 C.F.R. § 214.2(h)(2)(i)(G), USCIS explained that the agency 
seeks to ensure the "fair and equitable distribution of cap numbers." Petitions Filed on Behalf of 
' H-1B Temporary Workers Subject to or Exempt from the Annual Numerical Limitation, 73 Fed. 
Reg. 15389, 15392 (Mar. 24, 2008) (to be codified at 8 C.F.R. pt. 214). See 8 C.F.R. 
§ 214.2(h)(8)(ii)(B) (explaining the lottery system as "ensur[ing] the fair and orderly allocation of 
numbers"). The intent behind prohibiting multiple filings is to curb the practice of petitioners who 
take advantage of the lottery system by attempting to increase their chances of being selected. 73 
Fed. Reg. at 15391-93. In order to effectuate this provision's remedial purposes, we must 
expansively interpret the types of "related entities" encompassed by 8 C.F.R. § 214.2(h)(2)(i)(G) 
beyond those specifically enumerated, i.e., a parent company, subsidiary, or affiliate. See, e.g. 
Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (remedial legislation should be construed broadly to 
effectuate its purposes). If we were to limit 8 C.F.R. § 214.2(h)(2)(i)(G) to only legally related 
entities, then the regulation's primary purpose to curb abuse of the random lottery system could 
continue to be easily frustrated. 
In fact, this appears to be what the Petitioner and Company J intended through their multiple filings: 
to increase the Beneficiary's chances of being selected for an H-1B number. The Petitioner 
5 For example, the common dictionary definition of the term "related" is "having relationship: connected by reason of an 
established or discoverable relation." See, e.g~, Webster's Third New International Dictionmy (20 17), available at 
http://unabridged.merriam-webster.com/unabridged/related (last visited July 31, 20 17). It also defines the word 
"relation" as "an aspect or quality (as resemblance, direction, difference) that can be predicated only of two or more 
things taken together: something perceived or discovered by observing or thinking about two or more things at the same 
time: CONNECTION." Id at http://unabridged.merriam-webster.com/unabridged/relation (last visited July 31, 20 17). 
6 
For example, the term "such" is defined as "of a kind or character about to be indicated suggested, or exemplified." 
See id at http://unabridged.merriam-webster.com/unabridged/such (last visited July 31, 20 17). 
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Matter of F-E-, Inc. 
specifically stated that, "[b]ecause the chances of being picked for an H-lB visa for Petitioner and 
[Company J] were fairly slim ... the Beneficiary intentionally sought out as many job offers as 
possible." The relationship between the Petitioner and Company J, and any other set of "related" 
petitioners, is critical. Because the Petitioner and Company J are related, it appears that they likely 
knew of and cooperated with the other's filing for the Beneficiary. In these circumstances, 
beneficiary-driven multiple filings become petitioner-driven multiple filings which violate the 
purpose of8 C.F.R. § 214.2(h)(2)(i)(G). 
2. Legitimate Business Need 
For the same reason, we find that the Petitioner has not demonstrated a "legitimate business need" to 
file this duplicative petition for the Beneficiary. 
Generally, in determining whether a petitioner has demonstrated a "legitimate business need," we 
consider factors relevant to the nature of the beneficiary's proposed employment such as the same or 
similar job duties and the submission of identical supporting documentation. We also consider 
factors relevant to the nature of the petitioner's business operations, including the ability of the 
petitioner to support the proposed employment within its particular business operations, the 
petitioner's hiring and recruiting history for the proffered position, and the petitioner's intent in 
filing the petition for the beneficiary. Each set of petitions must be evaluated on a case-by-case 
basis, with no one factor necessarily determinative or exclusive. Whether or not 8 C.F.R. 
§ 214.2(h)(2)(i)(G) applies ultimately boils down to the nature and purpose of the employment being 
offered: each proffered position must be materially distince and must represent a credible, bona fide 
job opportunity. 
Here, the Petitioner has not demonstrated its "legitimate business need." Not only did the Petitioner 
and Company J submit materially identical petitions through the same a~torney, but the Petitioner 
also indicated that it did so with the intent to increase the Beneficiary's chances of being selected 
under the H-lB lottery. This does not constitute a "legitimate business need" for purposes 8 C.F.R. 
§ 214.2(h)(2)(i)(G). 
Furthermore, we find that the Petitioner has not demonstrated a credible job opportunity for the 
Beneficiary. On the labor condition application (LCA) submitted in support of this and the other 
petition, the Petitioner and Company J classified this position as an entry-level "Civil Engineers" 
position. On appeal the Petitioner referred to the proffered position as a subordinate (i.e., 
unlicensed) "civil engineer" position pursuant to California's "Professional Engineers Act. 
7 The tenn "materially distinct" does not necessarily exclude positions with the same title and similar job duties. In the 
federal register, the agency specifically provided the example of two subsidiary companies each filinga petition for the 
same beneficiary to fill a CEO position as a scenario in which there could be a legitimate business need. 73 Fed. Reg. at 
15392. However, because this example does not explain what other factors were present in the' proposed CEO positions, 
we decline to interpret the federal register as standing for the blanket proposition that any two related companies filing 
for the same beneficiary in the same position can be considered legitimate. 
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Matter of F-E-, Inc. 
According to the U.S. Department of Labor's (DOL) Occupational Outlook Handbook which we 
consider as an authoritative source on the duties and educational requirements of the wide variety of 
occupations that it addresses, "[c]ivil engineers need a bachelor's degree in civil engineering, in one 
of its specialties, or in civil engineering technology." Bureau of Labor Statistics, U.S. Dep't of 
Labor, Occupational Outlook Handbook, Civil Engineers (2016-17 ed.). 
But for the proffered position, neither the Petitioner nor Company 1 stated a requirement for a degree 
in civil engineering or another related engineering discipline. Instead, both stated that the proffered 
position requires "at least a bachelor's degree in Energy, Environment and Sustainability or a related 
field."8 The Petitioner has not established that a degree in "Energy, Environment, and 
Sustainability" is equivalent to an engineering degree, much less an engineering degree in the 
specific field of civil engineering or one of its closely related specialties. It is not apparent, 
therefore, that the proffered position is actually a civil engineer position. 
We must further question whether the proffered position is a civil engineer position in light of a 
letter the Petitioner submitted about construction managers. Specifically, this letter entitled 
"Multiple Job Offers for Construction Managers" discussed average job offers received by graduates 
of a university's construction management degree program. We also note the overlapping nature of 
the proffered job duties with job duties commonly performed by construction managers. For 
e!Xample, the proffered job duties of "preparation of scheduling for project start dates and updates" 
and "calculate cost of materials required for projects" are consistent with construction managers' 
typically duties to "prepare cost estimates, budgets, and work timetables." !d. For these additional 
reasons, it is not apparent that the proffered position is actually a civil engineer position.9 
The record is therefore insufficient to demonstrate the substantive nature of the position being 
offered to the Beneficiary. Accordingly, we cannot find that this or the other H-lB petition for the 
Beneficiary represents a credible, bona fide job opportunity. Even though the Petitioner and 
Company J may otherwise be legitimate businesses with separate businesses operations, they have 
8 The Beneficiary possesses a foreign degree in exactly "Energy , Environment and Sustainability." 
9 Although not asserted here, we note that for positions involving duties of more than one occupational classification , the 
LCA should reflect the occupational classification of the most relevant , i.e., highest-paying , occupation. See U.S. Dep't 
of Labor, Emp't & Training Admin. , Prevailing Wage Determination Policy Guidan ce, Nonagric . Immigration Programs 
(rev. Nov. 2009) , available at http://www.foreignlaborcert .doleta .gov/pdf/NPWHC _Guidance_Revised_ll _2009 .pdf. 
According to the LCA, the prevailing wage for a Level I "Civil Engineers " position in the area and time period of 
intended employment is $72,654 per year. The Beneficiary is being offered $72,700 per year. But if, for example , the 
proffered position were to combine duties of "Construction Managers," then the Level I prevailing wage for that 
occupation in the relevant area and time period of intended employment would be higher, at $77,355 per year. For more 
information regarding wages for "Construction Managers " in the , CA MSA for 
the period 7/2015 - 6/2016 , see FLC Data Center at http://www.tlcdatacenter.com /OesQuickResults.aspx?code= 11-
902 I &area= &year= I 6&source= I (last visited July 31 , 20 17). In that case, we would find the LCA inappropriate 
for the proffered position . 
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Matter of F-E-, Inc. 
not demonstrated that they would each employ the Beneficiary in the capacity claimed, i.e., as a civil 
engineer, and not some other, non-engineer position. 
Overall, we find that the Petitioner and Company J are "related entities," and that the Petitioner has 
riot demonstrated a "legitimate business need" to file a multiple, duplicative petition for the 
Beneficiary. Approval of the petition is prohibited under 8 C.F.R. § 214.2(h)(2)(i)(G). 
II. DIRECTOR'S OTHER GROUNDS FOR DENIAL 
As discussed above, the record is insufficient to demonstrate the substantive nature of the proffered 
position. That is, the record does not demonstrate whether the proffered position is a "Civil 
Engineers" position or falls under another occupational category. Accordingly, we cannot reach a 
determination on the Director's other grounds for denial, including whether the proffered position 
qualifies as a specialty occupation and whether the Beneficiary is qualified to perform the duties of 
the proffered position. 
Finally, we will briefly address the Director's statements that "[i]t is unclear to USCIS as to how the 
beneficiary can work for ... two different entities, full-time, with two different workloads; and at 
two different locations." 
We do not construe this set of duplicative petitions as requesting concurrent employment for the 
Beneficiary. Neither petitioner requested "new concurrent employment" on the underlying H-1B 
petition or otherwise indicated that the Beneficiary would be performing both of the proffered 
positions for both companies simultaneously. To the extent that the Director concluded that the 
proffered position does not qualify as a specialty occupation or that the Petitioner will not have an 
employer-employee relationship with the Beneficiary solely on the basis that the Petitioner and 
Company J requested concurrent positions for the Beneficiary, we find these conclusions erroneous 
and will withdraw them. 
III. CONCLUSION 
The Petitioner has not overcome the prohibition against filing multiple H-1 B petitions for the same 
Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-E-, Inc., ID# 415924 (AAO Aug. 1, 2017) 
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