dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-N-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 10,2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT Consulting company, seeks to employ the Beneficiary as a Collidus/ Acutate 
Developer and to extend his classification as a nonimmigrant worker in a specialty occupation. See 
section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition. The matter is 
now before us on appeal. The appeal will be dismissed. 
The Director denied the petition, concluding that the evidence of record did not establish that the 
Petitioner would be a "United States employer" having an "employer-employee relationship" with 
the Beneficiary. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the Director's request for additional evidence (RFE); (3) the Petitioner's 
response to the RFE; (4) the Director's letter denying the petition; and (5) the Form I-290B, Notice 
of Appeal or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the Director's basis for denying this petition. 1 Accordingly, the appeal will be dismissed. 
I. EMPLOYER- EMPLOYEE RELATIONSHIP 
We will now address the Director's determination that the evidence of record does not establish that 
the Petitioner will be a "United States employer" having "an employer-employee relationship with 
respect 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." 8 C.F .R. § 214.2(h)( 4 )(ii). 
Section 101 (a)( 15)(H)(i)(b) of the Act defines an H -1 B nonimmigrant in pertinent part as a foreign 
national: 
1 The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's claim is 
"probably true," where the determination of "truth" is made based on the factual circumstances of each individual 
case. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 201 0) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
1989)). 
Matter of D-N-S-, Inc. 
subject to section 2120)(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)(l) .... 
"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 respect 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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that a foreign national coming 
to the United States to perform services in a specialty occupation will have an "intending employer" 
who will file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) 
of the Act, 8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of 
the Act, 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify 
aliens as H-IB temporary "employees." 8 C.F.R. §§ 214.2(h)(l), (2)(i)(A). Finally, the definition of 
"United States employer" indicates in its second prong that the Petitioner must have an "employer­
employee relationship" with the "employees under this part," i.e., the H-IB beneficiary, and that this 
relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control 
the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States 
employer"). 
Neither the legacy Immigration and Naturalization Service ("INS") nor U.S. Citizenship and 
Immigration Services ("USCIS") defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H -1 B visa classification, even though the regulation describes H -1 B 
2 
Matter of D-N-S-, Inc. 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H-1 B visa classification, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. 
v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative 
Non-Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry are 
the skill required; the source of the instrumentalities and tools; the location of the work; 
the duration of the relationship between the parties; whether the hiring party has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324 (quoting Communityfor Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C v. Wells, 538 U.S. at 440 (hereinafter 
"Clackamas"). As the common-law test contains "no shorthand formula or magic phrase that can be 
applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with 
no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 
390 u.s. 254, 258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) ofthe Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition? 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
2 
While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 ("ERISA"), 29 U.S.C. § 1 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992), aff'd, 27 F.3d 800 (2nd Cir.), cert. denied, 513 U.S. 1000 (1994). 
3 
Matter of D-N-S-, Inc. 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)( 4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. 
Cf Darden, 503 U.S. at 318-319. 3 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h). 4 
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-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect 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 .... " (emphasis added)). 
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 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (1958). 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 New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also 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-1B nurses under 
8 C.F.R. § 214.2(h), even though a medical contract service agency is the actual petitioner, because the 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452,461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 
U.S.410,414,65S.Ct.1215, 1217,89L.Ed.l700(1945)). 
4 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-IB intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized aliens). 
4 
(b)(6)
Matter of D-N-S-, Inc. 
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 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 448-449; New Compliance Manual at§ 2-III(A)(l) . 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden , 503 U.S. at 
323-324. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, not who has 
the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive." ' !d. at 451 (quoting Darden , 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-1B temporary "employee ." 
The Petitioner claims that the Beneficiary 
would provide his services to its offsite client, 
in Kansas. However, on the Form 1-129 and in the 
LCA, the Petitioner stated that the Beneficiary would 
work in Texas.5 The Petitioner 
provided no explanation for the inconsistency. It is incumbent upon the Petitioner to resolve any 
inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on 
any aspect of the Petitioner 's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. at 591. 
Again, the Petitioner claims that the Beneficiary will work for its end-client, and submits a 
master service agreement executed between itself and on March 6, 2010, along with a 
5 The record , therefore , lacks an LCA certified for the location of intended employment , which alone mandates denial of 
this petition . 
(b)(6)
Matter of D-N-S-, Inc. 
statement of work (SOW) dated February 24, 2010, issued pursuant to it. The record also contains a 
document entitled "Scope Change Order No 4 to Statement of Work No 2008-2092." The SOW was 
not assigned a number. Therefore, it is unclear whether the "change order" is related to the original 
SOW submitted by the Petitioner. Furthermore, the SOW and the change order do not contain 
signatures of the parties. Therefore, it has not been established that the SOW and the change order 
are legally binding on either party. In addition, the Petitioner has not explained the relevance of the 
SOW as the SOW states that the term ofthe SOW ends on September 30, 2010, which is prior to the 
filing of the petition. 6 
For these reasons alone, the evidence of record does not establish that the Petitioner will be a 
"United States employer" having an "employer-employee relationship" with the Beneficiary as an 
H-1B temporary "employee." 
However, even if these evidentiary deficiencies were not present, we would still find that the 
evidence of record does not demonstrate the existence of an employer-employee relationship 
between the Petitioner and the Beneficiary, as the remaining documents do not establish the 
Petitioner's claim. 
For example, the record contains, among others, a copy of a master agreement executed between the 
Petitioner and ; 
a purchase order dated June 18, 2010 for a master 
agreement between the Petitioner and agreements with 
an agreement with and, an agreement among the 
Petitioner, ' As the Petitioner does not explain the relevance of 
these agreements to the Beneficiary's claimed assignment at ~ . we will not discuss them further. 
The record also contains two SOWs executed between the Petitioner and 
_ dated March 3, 2014 and May 22, 2014. The SOWs state that they 
were executed pursuant to a Subcontractor Master Services Agreement dated March 3, 2014. 
According to these SOWs, the Beneficiary 
would provide services virtually, at a home office, and at 
the client's project location in Texas. Although the project location coincides with the 
work location provided on the Form 1-129 and in the LCA, the Petitioner did not identify 
as its client at whose location the Beneficiary would work. Thus, any 
suggestion that the Beneficiary would work pursuant to these agreements conflicts with the 
Petitioner's prior statements. Furthermore, March 3, 2014, statement of work was not properly 
6 The record, therefore, does not establish that the Petitioner had secured a work for the Beneficiary to perform prior to 
filing ofthe petition. 
7 is located in Texas; is located in Pennsylvania; is located in 
Maryland; is located in California; is located in Indiana; 
IS m North Carolina; and is located in Massachusetts. The Petitioner 
does not claim that the Beneficiary would work for any of these companies. Furthermore, the agreement with is 
not properly executed as representative did not sign the agreement. Therefore, we do not consider this 
agreement to be probative evidence toward establishing an employer-employee relationship between the Petitioner and 
the Beneficiary. Again, as the relevance of these agreements is unclear, we will not discuss them further. 
(b)(6)
Matter of D-N-S-, Inc. 
executed as it was not signed by Nor does the record contain a copy of the 
agreement between the Petitioner and pursuant to which the SOWs were 
issued. It has therefore not been established that the SOWs are legally binding on either party. For 
all of these reasons, we find the SOWs insufficient to demonstrate employer-employee relationship 
between the Petitioner and the Beneficiary. 
Counsel's claims that the Petitioner would control the Beneficiary's work are noted. For example, 
on appeal counsel states that the Beneficiary is supervised by the project manager, and 
draws our attention to the time reports authorized by Counsel further states that the 
Petitioner determines which tasks would be assigned to the Beneficiary. Again, counsel draws our 
attention to the time reports authorized by Counsel also states that the Petitioner 
evaluates the work product of the Beneficiary and that weekly time reports are presented to the 
Petitioner and are authorized by 
We find the time reports insufficient to demonstrate that the Petitioner has control over the 
Beneficiary's work at First, as noted, the Petitioner has not made clear where the Beneficiary 
is working, and these time reports do not specify any particular end-client. Furthermore, the time 
reports do not indicate that anyone from the Petitioner's company would be assigned to the 
Beneficiary's worksite to assign his daily tasks (or any of his tasks, for that matter) or otherwise 
supervise his work. The Petitioner did not explain how the time reports would provide any insight 
into the methods for assigning the Beneficiary's work, and assessing and evaluating the 
Beneficiary's performance. Similarly, the annual performance review of the Beneficiary by 
provides no information regarding how the Petitioner observed the Beneficiary and made a 
determination regarding his performance. While we acknowledge counsel's assertion that the 
Petitioner evaluates the work product of the Beneficiary, counsel's assertion alone is not sufficient to 
meet the Petitioner's burden of proof. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the Petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). 
Nor does the employment agreement establish the requisite control. The July 11, 2008, agreement 
does not discuss the scope of the Petitioner's control over the Beneficiary's work, other than to note 
that the Petitioner will pay his salary.8 Furthermore, the agreement is not signed by the Petitioner, 
which diminishes its evidentiary value. 
8 The Petitioner's claims that it would pay the Beneficiary's salary are noted, and the method of payment is a factor to be 
considered. However, in some instances, a petitioner's role is limited to invoicing and proper payment for the hours 
worked by a beneficiary. In such cases, with a petitioner's role limited to essentially the functions of a payroll 
administrator, a beneficiary is even paid, in the end, by the end-client. See Defensor v. Meissner, 20 I F.3d at 388. It is 
necessary to weigh and compare on all of the circumstances in the relationship between the parties in analyzing the facts 
of each individual case. 
(b)(6)
Matter of D-N-S-, Inc. 
We acknowledge that the MSA executed between and the Petitioner states that "[t]he Supplier 
Project Manager [(the Petitioner's project manager)] will provide overall management direction to 
Supplier Personnel for the applicable Order." However, this statement is insufficient to establish the 
Petitioner's control over the Beneficiary's work at the end-client's location. First, as discussed 
earlier, the Petitioner did not establish who the end-client would actually be, as it provided 
inconsistent information regarding the end-client's work location. Therefore, the master 
service agreement is insufficient to demonstrate that is the end-client. Second, the statement 
above references an "applicable Order." The Petitioner did not submit a specific work order 
identifying the Beneficiary, and providing specifics of the work to be performed by him. Finally, 
although the statement above suggests that the Petitioner would provide overall management 
direction to its personnel, it provides no details as to what the phrase "management direction" 
entails. Without more, the language of the master service agreement provides no insight to specifics 
of the control the Petitioner would have over the Beneficiary. 
The evidence of record does not establish that the Petitioner would exercise control over the 
Beneficiary's employment. The generalized assertions regarding control contained in the record of 
proceeding lack any degree of specificity, and they do not specifically discuss, in probative detail, 
the degree of supervision, direction, or control that she would receive. They are not sufficient to 
establish that the Petitioner would supervise or otherwise control the work of the Beneficiary. 
Simply going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter ofTreasure Craft ofCal?fornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
For all of these reasons, the evidence of record does not demonstrate the requisite employer­
employee relationship between the Petitioner and the Beneficiary. While social security 
contributions, worker's compensation contributions, unemployment insurance contributions, federal 
and state income tax withholdings, and other benefits are still relevant factors in determining who 
will control an alien beneficiary, other incidents of the relationship, e.g., who will oversee and direct 
the work of the Beneficiary, who will provide the instrumentalities and tools, where will the work be 
located, and who has the right or ability to affect the projects to which the alien beneficiary is 
assigned, must also be assessed and weighed in order to make a determination as to who will be the 
Beneficiary's employer. Without full disclosure of all of the relevant factors, we are unable to find 
that the requisite employer-employee relationship will exist between the Petitioner and the 
Beneficiary. 
The evidence of record, therefore, is insufficient to establish that the Petitioner qualifies as a United 
States employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). Merely claiming that the Petitioner 
exercises complete control over the Beneficiary, without evidence supporting the claim, does not 
establish eligibility in this matter. Again, going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofjici, 
22 I&N Dec. at 165. The evidence of record does not establish that the Petitioner would be involved 
in assigning work for this beneficiary, would substantially control the Beneficiary in his day-to-day 
work, would determine the specifications and requirements of that work, and would gauge the 
(b)(6)
Matter of D-N-S- , Inc. 
quality of the Beneficiary's performance and hence, ultimately, the Beneficiary's acceptability for 
continued assignment. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H -1 B temporary 
"employee. " 8 
C.P.R. § 214.2(h)(4)(ii). Thus, we agree with the Director 's decision that the 
Petitioner has failed to demonstrate that it will have an employer-employee relationship with the 
Beneficiary. 
II. THE LCA AND THE INTENDED EMPLOYMENT LOCATION 
As discussed earlier , the Petitioner stated in the Form I-129 that the Beneficiary would work in 
Texas and submitted an LCA certified for that location. However , in its support letter , the 
Petitioner stated that the Beneficiary would work at its client's , Kansas location . In 
his RFE response letter , counsel stated that the work for the clients must be performed at 
building. " The Master Services Agreement between and the Petitioner states that is a 
"Kansas corporation ." Therefore, the Petitioner did not submit a certified LCA for the Beneficiary ' s 
intended employment location. 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL 
regulations note that the U.S. 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 Form I-129 actually supports that petition. See 20 C.P.R. § 655.705(b), which states , 
in pertinent part : 
For H-IB visas . .. DHS accepts the employer ' s petition (DHS Form I-129) 
with the DOL-certified LCA attached. In doing so, the DHS determines whether the 
petition is supported by an LCA which corresponds with the p etition, 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 ofH-lB visa classification. 
(emphasis added). 
As 20 C.P.R. § 655.705(b) requires that USCIS ensure that an H-IB petition is filed with a "DOL­
certified LCA attached " that actually supports and corresponds with the petition on the petition ' s 
filing, this regulation inherently necessitates the filing of an amended H-IB petition to permit USCIS 
to perform its regulatory duty to ensure that a certified LCA actually supports and corresponds with 
an H-lB petition as of the date of that petition's filing. In addition , as 8 C.P.R. § 103.2(b)(l) 
requires eligibility to be established at the time of filing, it is factually impossible for an LCA 
certified by DOL after the filing of an initial H-1 B petition to establish eligibility at the time the 
initial petition was filed. Therefore , in order for a petitioner to comply with 8 C.F .R. § 103 .2(b )(1) 
and USCIS to perform its regulatory duties under 20 C.P.R. § 655.705(b) , a petitioner must file an 
9 
J'vfatter of D-N-S-, Inc. 
amended or new petition, with fee, whenever a beneficiary's job location changes such that a new 
LCA is required to be filed with DOL. 
In light of the above, we find that a necessary condition for approval of an H -1 B visa petition is an 
LCA, certified on or before the filing date of the petition, with information, accurate as of the date of 
the petition's filing, as to where the Beneficiary would actually be employed. Furthermore, the 
petition must list the locations where the Beneficiary would be employed and be accompanied by an 
itinerary with the dates the Beneficiary will provide services at each location. Both conditions were 
not satisfied in this proceeding. Again, 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. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). 
It is further noted that to ascertain the intent of a petitioner, USCIS must look to the Form I-129 and 
the documents filed in support of the petition. It is only in this manner that the agency can determine 
the exact position offered, the location of employment, the proffered wage, et cetera. If a 
petitioner's intent changes with regard to a material term and condition of employment or the 
Beneficiary's eligibility, an amended or new petition must be filed. To allow a petition to be 
amended in any other way would be contrary to the regulations. Taken to the extreme, a petitioner 
could then simply claim to offer what is essentially speculative employment when filing the petition 
only to "change its intent" after the fact, either before or after the H -1 B petition has been 
adjudicated. The agency made clear long ago that speculative employment is not permitted in the H-
1B program. For example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H -1 B classification on the basis of 
speculative, or undetermined, prospective employment. The H-1 B classification is not 
intended as a vehicle for an alien to engage in a job search within the United States, 
or for employers to bring in temporary foreign workers to meet possible workforce 
needs arising from potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly classifiable as an 
H-1B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the 
attainment of a specific bachelor's degree. See section 214(i) of the Immigration and 
Nationality Act (the "Act"). The Service must then determine whether the alien has 
the appropriate degree for the occupation. In the case of speculative employment, the 
Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this 
country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to 
change its intent with regard to non-speculative employment, e.g., a change in duties or job location, 
it must nonetheless document such a material change in intent through an amended or new petition 
in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
10 
Matter of D-N-S-, Inc. 
III. PRIORH-lBAPPROVALS 
Finally, it is noted that the Beneficiary was previously approved for H-1B status for a position the 
Petitioner claims to have been the same as the proffered position. However, we are not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. If any of the previous nonimmigrant petitions were 
approved based on the same unsupported assertions that are contained in the current record, they 
would constitute material and gross error on the part of the Director. We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 
I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to suggest that USCIS or any agency must 
treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F .2d 1084, 
1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). A prior approval does not compel the 
approval of a subsequent petition or relieve the Petitioner of its burden to provide sufficient 
documentation to establish current eligibility for the benefit sought. 55 Fed. Reg. 2606, 2612 (Jan. 
26, 1990). A prior approval also does not preclude USCIS from denying an extension of an original 
visa petition based on a reassessment of eligibility for the benefit sought. See Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Furthermore, our authority over the 
service centers is comparable to the relationship between a court of appeals and a district court. Even 
if a service center director had approved nonimmigrant petitions on behalf of a beneficiary, we 
would not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic 
Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 
S.Ct. 51 (2001). 
IV. CONCLUSION AND ORDER 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
11 
Matter of D-N-S-, Inc. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met.9 
ORDER: The appeal is dismissed. 
Cite as Matter of D-N-S-, Inc., ID# 11948 (AAO Nov. 10, 20 15) 
9 As the grounds discussed above are dispositive of the Petitioner's eligibility for the benefit sought in this matter, we 
will not address and will instead reserve our determination on the additional issues and deficiencies that we observe in 
the record of proceeding with regard to the approval of the H-1 B petition. 
12