dismissed H-1B Case: Information Technology

MATTER OF C-1-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 23,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT consulting company, seeks to employ the Beneficiary as a "programmer analyst" 
under the H-1B 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 the proffered position qualifies as a specialty occupation in accordance with the 
applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner submits new evidence and asserts 
that the evidence of record is sufficient to demonstrate that the proffered position qualifies as a specialty 
occupation. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCUP A TION 
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. 
(b)(6)
Matter ofC-1-, Inc. 
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: 
• 
( 1) 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 384, 387 (5th Cir. 2000). 
We note that, as recognized by the court in Defensor, where the work is to be performed for entities 
other than the petitioner, evidence of the client companies' job requirements is critical. Jd. at 387-
88. The court held that the former Immigration and Naturalization Service had reasonably 
interpreted the statute and regulations as requiring the petitioner to produce evidence that a proffered 
position qualifies as a specialty occupation on the basis of the requirements imposed by the entities 
using the beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the 
duties to be performed for the client companies, and the type and educational level necessary to 
perform that particular work. 
B. The Proffered Position 
The Petitioner seeks to employ the Beneficiary as a full-time programmer analyst for a period of 
approximately three years. The Petitioner, which is located in Pennsylvania, indicated on the H-IB 
petition that the Beneficiary would work off-site at the address of in 
North Carolina. The Petitioner submitted a Labor 
Condition Application (LCA) to support 
the visa petition and reported two worksites for the Beneficiary: (1) m 
North Carolina; and (2) m Illinois. 
2 
(b)(6)
Matter ofC-1-, Inc. 
In support of the petition, the Petitioner submitted a letter listing the duties of the proffered position 
as follows: 
• Correct errors by making appropriate changes and rechecking the program to ensure 
that the desired results are produced. 
• Conduct 
trial runs of programs and software applications to be sure they will produce 
the desired information and that the instructions are correct. 
• Write, update, and maintain computer programs or software packages to handle 
specific jobs such as tracking inventory, storing or retrieving data, or controlling other 
equipment. 
• Write, analyze, review, and rewrite programs, using workflow chart and diagram, and 
applying knowledge of computer capabilities, subject matter, and symbolic logic. 
• Perform or direct revision, repair, or expansion of existing programs to increase 
operating efficiency or adapt to new requirements. 
• Consult with managerial, engineering, and technical personnel to clarify program 
intent, identify problems, and suggest 
changes. 
• Perform systems analysis and programming tasks to maintain and control the use of 
computer systems software as a systems programmer. 
• Compile and write documentation of program development and subsequent revisions, 
inserting comments in the coded instructions so others can understand the program. 
• Prepare detailed workflow charts and diagrams that describe input, output, and logical 
operation, and convert them into a series of instructions coded in a computer 
language. 
• Consult with and assist computer operators or system analysts to define and resolve· 
problems in running computer programs. 
According to the Petitioner, the position requires at least a bachelor's degree in computer science, 
engineering, computer applications, IT, CIS, MIS, or a related field, or its equivalent. 
The Petitioner submitted, inter alia, its Software Project SerVices Agreement with 
(Company E). The Petitioner supplemented its RFE response with a letter from Company E 
confirming that the Beneficiary would be working at its business premises in North 
Carolina, pursuant to a contract with the Petitioner. This letter listed the job duties for the 
Beneficiary, along with the percentages of time he would spend on each listed duty, as follows: 
• Systems Analysis (10%) 
• Systems Design and Architecture (5%) 
• Data Modeling ( 
1 0%) 
• Meetings and Discussions (10%) 
• Actual Coding (35%) 
• Code Walk Through & Unit Testing (10%) 
• Documentation (10%) 
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(b)(6)
Matter ofC-1-, Inc. 
• Web Application Integration and Testing (10%) 
C. Analysis 
To ascertain the intent of a petitioner, USCIS must look to the Form I-129 and the documents filed 
in support of the petition to determine the exact position offered, the location of employment, the 
proffered wage, et cetera. Here, the Petitioner stated that it wishes to employ the Beneficiary for a 
three year period; however, the record lacks documentation regarding the work that the Beneficiary 
would perform to sufficiently substantiate that it has H -1 B caliber work for the entire requested 
period. 
For instance, the Petitioner represented on the certified Labor Condition Application (LCA) that the 
Beneficiary would work in two geographic locations: (1) 
North Carolina; and (2) Illinois. However, the 
remaining evidence of record - including the Form I -129 petition and supporting documentation -
identify only client and one worksite (in North Carolina) for the Beneficiary. The Petitioner has not 
explained and documented what the Beneficiary would do in Illinois, who would employ 
him, what duties he would perform for that entity, the length of his assignment there, who would 
oversee his work, or any other pertinent aspects of his employment in Illinois. 1 
Furthermore, while the Petitioner has submitted documentation pertinent to the Beneficiary's 
assignment to Company E in North Carolina, these documents are insufficient to substantiate that he 
would perform H-1B caliber work for that entity for the entire requested period. The Petitioner 
submitted its Software Project Services Agreement with Company E, as well as a letter from this 
company. However, neither of these documents specifies the length of the Beneficiary's assignment. 
Moreover, the documentation does not present sufficient details about the client project and the 
actual tasks the Beneficiary would perform within the context of that specific project, or the 
educational requirements needed to perform the assigned tasks. We note again that, as recognized 
by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for entities other 
than 
the Petitioner, evidence of the client companies' required duties and educational requirements is 
critical. 
The letter from Company E does not reference any specific project the Beneficiary would be 
assigned to at its worksite. The Software Project Services Agreement merely identifies the name of 
the project as the "[Company E] and 
briefly describes the scope of work as involving "developing Front-end website for a learning 
management system." It does not, however, further explain the nature and complexity of the project 
1 
"[G]oing 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 of 
Cal., 14 I&N Dec. 190 (Reg'] Comm'r 1972)). 
4 
(b)(6)
Matter ofC-1-, Inc. 
or provide other pertinent information such as project timelines, deliverables, staffing, and 
educational/work experience requirements. 
In fact, .the Software Project Services Agreement does not specifically identify the Beneficiary or the 
role of the programmer analyst. This agreement notably states that the services to be provided to 
Company E are "outlined in Statement of Work on Clients' behalf' and "described and otherwise 
further defined in the Proposal." However, the Petitioner has not submitted the actual Statement of 
Work, Proposal, or any other similar documentation which contractually binds the Beneficiary's 
services to Company E and sets forth the terms and conditions of his claimed assignment there. 
Furthermore, we agree with the Director that the Petitioner's job descriptions are insufficient to 
demonstrate the substantive nature ofthe position and its associated job duties.2 The Petitioner's list 
of job duties are copied verbatim from the O*NET Details Report for the occupational category 
"Computer Programmers" corresponding to SOC code 15-1131.3 While this type of generic 
description may be appropriate when defining the range of duties that may be performed within an 
occupational category, it does not adequately convey the specific duties and tasks the Beneficiary 
would perform, and generally cannot be relied upon by a petitioner when discussing the duties 
attached to specific employment. In establishing a position as a specialty occupation, a petitioner 
must describe the specific duties and responsibilities to be performed by the beneficiary in the, 
context of that petitioner's business operations- or in this case, Company E's business operations 
and project- in order to demonstrate that a legitimate need for an employee exists, and that H-IB 
caliber work is available for the period of employment requested in the petition.4 Simply submitting 
a generic job description that is not specific to the Beneficiary is insufficient to establish the 
substantive nature of the proffered position. 
On appeal, the Petitioner submits a letter from In his letter, lists 
the sam~ job duties proposed for the Beneficiary that are copied verbatim from O*NET. Based on 
these duties, concludes that the Petitioner's position requires at least a bachelor's 
degree in computer science or a related field, or its equivalent. We carefully evaluated 
assertions in support of the instant petition but, again, we find that simply relying on a 
generic job description that is not specific to the Beneficiary and Company E is insufficient to 
establish the substantive nature of the proffered position. 
2 On the LCA, the Petitioner states that the proffered position corresponds to Standard Occupational Classification 
(SOC) code and title 15-1131, "Computer Programmers," from the Department of Labor's (DOL) Occupational 
Information Network (O*NET), at a Level I wage rate. 
3 See O*NET Online Details Report for "Computer Programmers," http://www.onetonline.org/link/details/15-1131.00 
(last visited Sep. 21, 20 16). 
4 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 103.2(b)(1). The H-18 classification is not intended for companies to engage in 
speculative employment and hire foreign workers to meet possible workforce needs arising from potential business 
expansions, customers, or contracts. The agency made clear long ago that speculative employment is not permitted in 
the H-1 B program. See, e.g., 63 Fed. Reg. 30419, 30419 - 20 (Jun. 4, 1998). 
5 
Matter ofC-1-, Inc. 
::rhe job duties provided in Company E's letter are also insufficient to demonstrate the substantive 
nature of the position and its associated job duties. This letter lacks references to any specific 
project; moreover, the brief list of job duties contained in this letter, such as "systems analysis" and 
"actual coding," are not described with a sufficient level of specificity to communicate ( 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 education of 
highly specialized knowledge in a specific specialty. Without a meaningful job description, the 
record lacks evidence sufficiently concrete and informative to demonstrate that the proffered 
position requires a specialty qccupation's level of knowledge in a specific specialty. 
As the Petitioner has not established the substantive nature of the work to be performed by the 
Beneficiary, we are thus 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 of that 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. 5 
Accordingly, because the Petitioner has not satisfied one of the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A), it has not demonstrated that the proffered position qualifies as a specialty 
occupation. The petition will be denied and the appeal dismissed for this reason. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will enter an additional basis for denial, i.e., that the evidence of record does not establish that 
the Petitioner would 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). 
A. Legal Framework 
5 We highlight, for example, the statement in the DOL's Occupational Outlook Handbook (Handbook) chapter on the 
"Computer Programmers" occupational classification that "[a] program's purpose determines the complexity of its 
computer code." Occupational Outlook Handbook, 2016-17 ed., "Computer Programmers," 
http://www.bls.gov/ooh/computer-and-information-technology/print/computer-programmers.htm (last visited Sep. 21, 
2016). We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses. The Handbook's statement is consistent with our conclusion that, without additional 
evidence regarding the actual end-client(s) and project(s) involved, and the Beneficiary's specific job duties for each 
client project(s), the Petitioner has not established the complexity of the proffered position and its associated job duties. 
6 
Matter ofC-1-, Inc. 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB 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)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations 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 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-1B nonimmigrant 
petitions, 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 at 388 (determining that hospitals, as the recipients ofbeneficiaries' services, are 
the "true employers" of H-1B nurses under 8 C.F.R. § 214.2(h), even though a medical contract 
7 
Matter ofC-1-, Inc. 
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 
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)(l). 
B. Analysis 
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-IB temporary "employee." Specifically, we find that the 
record of proceedings does not contain sufficient, consistent, and credible documentation confirming 
and describing the assignment(s) and project(s) on which the Beneficiary would work, for whom and 
where the Beneficiary would perform his duties, and other salient aspects of his employment. 
Therefore, the key element in this matter, which is who exercises control over the Beneficiary, has 
not been substantiated. 
As discussed above, the Petitioner reported on the LCA that the Beneficiary would work at two 
business locations: one in North Carolina, and one in Illinois. The Petitioner has not provided details 
about the Beneficiary's work in Illinois (e.g., identified which client the Beneficiary would work for 
in Illinois, what duties he would perform for that entity, the length of his assignment there, the terms 
and conditions of his work in Illinois). Further, the Petitioner stated on the H-IB petition that it 
submitted an itinerary with the petition; however, the record does not contain an itinerary with the 
dates and locations of his services as required by the regulations. 8 C.F .R. § 103 .2( a)(l) and (b)( 1 ), 
8 C.F.R. § 214.2(h)(2)(i)(B). 
Furthermore, the Petitioner has not sufficiently documented the terms and conditions of the 
Beneficiary's assignment to Company E. The record does not contain sufficient documentation from 
Company E, such as a Statement of Work or Purchase Order, which sets forth the details of the 
Beneficiary's assignment. Although the Petitioner submitted a letter from Company E which states 
that the Petitioner "reserves the right to hire, fire[,] supervise and otherwise control the work of the 
H-IB employee," it must be noted that the letter (as well as the Petitioner's evidence) does not 
explain and document in detail how the Petitioner would supervise and otherwise control the 
Beneficiary's day-to-day activities at Company E's business premises in North Carolina. The letter 
from Company E simply identifies the Beneficiary's direct supervisor as the Petitioner's human 
resources manager, but does not further explain such aspects as (1) how she would exercise this 
8 
Matter ofC-1-, Inc. 
claimed supervision and control, and (2) the basis of her knowledge (as a human resources manager) 
to oversee the work of a programmer analyst.6 
Additionally, the Software Project Services Agreement makes several references to an unidentified 
"Client" of Company E. For instance, this agreement states that the authorized services are 
"outlined in Statement of Work on Clients' behalf." Further according to this agreement, the 
"deliverables" refers to "the services and work product specified in the Proposal to be delivered ... 
to the Client." However, the Petitioner has not identified who this other "Client" -is, where this entity 
is located, and the nature of its relationship to the Petitioner, Company E, and the Beneficiary. 
Again, "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. at 165. 
Overall, the record of proceedings lacks sufficient documentation evidencing exactly what the 
Beneficiary would do for the period of time requested as well as where exactly and for whom the 
Beneficiary would be providing services. Given this specific lack of evidence, the Petitioner has not 
established who has or would have actual control over the Beneficiary's work or duties, or the 
condition and scope of the Beneficiary's services. Thus, the Petitioner has not established whether it 
has made a bona fide offer of employment to the Beneficiary based on the evidence of record or that 
the Petitioner, or any other company which it may represent, would have and 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-IB nonimmigrant worker). 
Without full disclosure of all of the relevant factors, we are unable to find that the requisite 
employer-employee relationship would exist between the Petitioner and the Beneficiary. For this 
additional reason, the petition will be denied. 
III. ITINERARY REQUIREMENT 
We also find that the Petitioner did not comply with the itinerary requirement at 8 C.F.R. 
· § 214.2(h)(2)(i)(B). 
A. Legal Framework 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) states, in pertinent part: 
6 It appears that the human resources manager would be located approximately 440 miles from the Beneficiary's 
worksite in North Carolina and 745 miles from the worksite in Illinois. Given the distance, it is incumbent upon the 
Petitioner to establish how the human resources manager would exercise this claimed supervision and control over the 
Beneficiary. 
9 
Matter ofC-1-, Inc. 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations ofthe services or training and must be filed with 
USCIS as provided in the form instructions. The address that the petitioner specifies 
as its location on the Form I-129 shall be where the petitioner is located for purposes 
of this paragraph. 
The itinerary language at 8 C.F.R. § 214.2(h)(2)(i)(B), with its use of the mandatory "must" and its 
inclusion in the subsection "Filing of petitions," establishes that the itinerary as there defined is a 
material and necessary document for an H-1B petition involving employment at multiple locations, 
and that such a petition may not be approved for any employment period for which there is not 
submitted at least the employment dates and locations. 
B. Analysis 
Here, the Petitioner marked on the H -1 B petition that it would submit an itinerary for the 
Beneficiary. The Petitioner also submitted a certified LCA indicating that the Beneficiary would 
work at two different locations during the requested period of employment. But the Petitioner has 
not provided the required itinerary. 8 C.F.R. § 214.2(h)(2)(i)(B) (requiring an itinerary where 
"services to be performed or training to be received in more than one location"). The petition must 
be denied on this additional basis as well. 
IV. NEED FOR SERVICES 
We further find that the Petitioner did not comply with the filing requirement at 8 C.F.R. 
§ 214.2(h)(9)(i)(B). 
A. Legal Framework 
USCIS is prohibited from approving a petition filed earlier than six months before the date of actual 
need for a beneficiary's services. 8 C.F.R. § 214.2(h)(9)(i)(B). 
For H -1 B classification, the petitioner is required to submit written contracts between the petitioner 
and the beneficiary, or if there is no written agreement, a summary of the terms of the oral agreement 
under which the beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(iv)(A) and (B). Further, a 
petitioner must establish eligibility at the time of filing the benefit request. 8 C.F .R. § 103 .2(b )(I). 
Any evidence submitted in connection with an H -1 B petition is incorporated into and considered part 
of the petitioner's request. !d. 
B. Analysis 
In the instarit case, the Petitioner submitted the Form I-129 petition on April 7, 2015. With the 
petition, the Petitioner submitted an offer of employment letter from the Petitioner to the Beneficiary 
with the terms of the agreement under which the Beneficiary will provide his services. The letter is 
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Matter ofC-1-, Inc. 
dated April 1, 2015 Gust a few days prior to the filing of the H-1B petition). In the letter, the 
Petitioner offers the Beneficiary a position as a programmer/analyst, starting on October 10, 2015. 
Thus, despite the October 1, 2015 start date listed on the petition, the petitioner indicated that its 
actual need for the beneficiary's services is more than six months after the H-1 B petition was filed. 
Thus, the visa petition was impermissibly filed more than six months before the date of actual need 
for the beneficiary's services. The regulations preclude the approval of the petition. 8 C.F.R. 
§ 214.2(h)(9)(i)(B). 
V. CONCLUSION 
The petition will be denied and the appeal dismissed 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-1-, Inc., ID# 11986 (AAO Sept. 23, 2016) 
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