dismissed H-1B Case: Information Technology

MATTER OF A-S-T- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 10,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an "Information Technology Company," seeks to temporarily employ the Beneficiary 
as a "Programmer Analyst" under the H -1 B nonimmigrant classification. See Immigration and 
Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, 
California Service Center, revoked the approval of the petition. The matter is now before us on 
appeal. Upon de novo review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the Director properly revoked the approval of the petition. 1 
II. REVOCATION FRAMEWORK 
USCIS may revoke the approval of an H-IB petition pursuant to 8 C.F.R. § 214.2(h)(ll)(iii), which 
states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition, or if the beneficiary is no longer receiving 
training as specified in the petition; or 
(2) The statement of facts contained in the petition or on the application for a 
temporary labor certification was not true and correct, inaccurate, 
fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(b)(6)
Matter of A-S-T- Corp. 
(4) The petitioner violated requirements of section 101(a)(l5)(H) ofthe Act or 
paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
Upon review of the record, we determine that the Director properly revoked the approval of the 
petition pursuant to 8 C.F.R. §§ 214.2(h)(ll)(iii)(A)(l) (the Beneficiary is no longer employed by 
the Petitioner in the capacity specified in the petition), (2) (the statement of facts contained in the 
petition was not true and correct, inaccurate, fraudulent, or misrepresented a material fact), and 
(3) (the Petitioner violated terms and conditions of the approved petition). 
III. FACTUAL AND PROCEDURAL HISTORY 
On the Form I-129, the Petitioner stated that it is a 165-employee "Information Technology 
Company" located at Illinois. The Petitioner sought to 
extend the Beneficiary's employment in a full-time "Programmer Analyst" position from the period 
of October 11, 2013 to May 7, 2016. The Petitioner stated that the Beneficiary would work off-site 
at the address of Illinois. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title " 15-
1121, Computer Systems Analysts," from the Occupational Information Network (O*NET) at a 
Level I (entry) wage level. The LCA listed three places of employment: (1) 
Illinois; (2) Illinois; and (3) 
Illinois. 
The Petitioner submitted a letter, dated April 25, 2013, listing the duties of the proffered position as 
follows: 
1. Analyzing user requirements and defining functional specifications 
2. Creating an Oracle database and application upgrade plan 
3. Analyzing, modifying and implementing an upgrade to Oracle RDBMS while 
applying all relevant patches 
4. Migrating Oracle applications and RDBMS in various environments 
5. Developing shell scripts to establish several proactive monitoring reports 
6. Developing and implementing test validations of the database and application 
7. Analyzing test results and recommending modifications to the databases and 
applications to meet project specifications 
8. Performing test disaster recovery 
9. Documenting modifications on enhancements made to the databases and 
applications as required by the project 
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(b)(6)
Matter of A-S-T- Corp. 
The instant petition was initially approved by the Director on October 12, 2013. 
On March 4, 2015, the Director issued a notice of intent to revoke (NOIR) the approval of the 
petition. In the NOIR, the Director informed the Petitioner of derogatory results from an 
administrative site visit performed on February 26, 2014. More specifically, the site inspector went 
to Illinois, which was the end-client address listed on the petition 
where the Beneficiary would work, and found that the Beneficiary was not assigned to work at that 
location. The site inspector contacted the Beneficiary, who stated that he had worked for the end­
client, the Illinois, 
from September 17, 2012 until the end of October 2013. The Beneficiary stated that he was no 
longer working for . and that he had been assigned to a new end-client, the 
located at California. The site 
inspector also contacted the Petitioner, who stated that the Beneficiary was currently working at 
on Mondays through Thursdays, and at the Petitioner's worksite on Fridays. In the NOIR, the 
Director advised the Petitioner that it intended to revoke the approval of the petition based upon this 
information, the lack of evidence from the new end-client regarding the Beneficiary's services, and 
the lack of a valid LCA covering the Beneficiary' s assignment to the new end-client. 
In a letter dated April2 , 2015, submitted in response to the NOIR, the Petitioner explained: 
The Beneficiary was initially assigned to the 
located at 
was then reassigned to the Petitioner's office located at 
Illinois. The Beneficiary 
Illinois to perform duties on the Petitioner's project for the 
Although the office 
is located in . the Beneficiary worked remotely on this project 
from the Petitioner's office in Illinois and this information was provided 
to the USCIS Fraud Detection and National Security ("FDNS") officer. The 
Beneficiary is currently assigned to located at 
Illinois. Because all of the Beneficiary's 
work locations were/are located in the a new LCA was not 
required to be filed with the DOL and thus an Amended H-1B Petition was not 
required to be filed with the users . 
The Director revoked the approval of the petition on June 10, 2015. The Petitioner subsequently 
filed the instant 
appeal. 
On appeal, the Petitioner reiterates its claim that the Beneficiary has been assigned to 
, and that because the work location is located in an MSA included in the LCA, 
the Petitioner was not required to file a new LCA and amended petition. In support of the appeal, 
the Petitioner submits, inter alia, a letter from confirming the Beneficiary's assignment to 
and listing his job duties, as follows: 
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(b)(6)
Matt er of A-S-T- Corp. 
1. Respond to issues (incidents) created related to lAM & GRC environments 
2. Perform scheduled maintenance of the servers 
3. Startup/shutdown procedures for the servers 
4. Conduct comprehensive monitoring 
5. Apply application server patches as needed 
6. Provide performance tuning and capacity planning recommendations 
7. Institute procedures for handling emergencies and resolving the problems 
8. Maintaining and patching of specified non-production environments 
9. Coordination ofbackup processes with IT staff 
10. Assist with creation and tracking of Oracle SRs 
11. Scheduling of planned maintenance windows with , staff 
12. Institute quality assurance/quality control procedures 
13. Document support procedures and create lAM environment documents 
14. Conduct knowledge transfer sessions with staff 
15. Review/Update tickets in Service-Now ( Incident Tracking System) 
The Petitioner also submits on appeal: a Statement of Work (SOW) between and the Petitioner, 
dated February 12, 2015, entitled -Oracle Access Control Framework Documentation"; 
another SOW between and the Petitioner, dated December 11, 2014, entitled ' - Oracle 
WebCenter System Functional/Technical Tasks"; and a Consulting Agreement between . and the 
Petitioner, dated December 12, 2014. 
IV. ANALYSIS 
We find that the Petitioner has not overcome the grounds of revocation specified by the Director. 
A. The Beneficiary is No Longer Employed in the Capacity Specified in the Petition 
In the Form I-129 petition and supporting documentation, including the LCA, the Petitioner 
indicated that the Beneficiary would be working at the following three locations: (1) the Petitioner's 
worksite; (2) Illinois, later identified as the client worksite of 
and (3) Illinois, for an unidentified end-client. The Petitioner 
further indicated that it would employ the Beneficiary on a full-time basis from October 11, 2013, to 
May 7, 2016, pursuant to the terms and conditions stated in the petition. 
However, the evidence of record reflects that the Beneficiary' s assignment at 
October 2013, and that he was subsequently assigned to another end-client, 
California. The Petitioner did not list 
terminated in 
, located at 
or the 
address as one of the Beneficiary ' s places of employment during the time period of October 
11 , 2013 to May 7, 2016. 
Although the Petitioner asserted that the Beneficiary worked remotely for from the 
Petitioner's premises, the Beneficiary indicated otherwise, stating that he worked for 
located at California. The Petitioner has not resolved this apparent 
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(b)(6)
Matter of A-S-T- Corp. 
inconsistency with competent objective evidence pointing to where the truth lies. See Matter of Ho, 
19 I&N Dec. 582, 591-2 (BIA 1988) (it is incumbent upon the petitioner to resolve inconsistencies 
by independent objective evidence, and any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth 
lies). That is, the Petitioner has not submitted any objective documentary evidence establishing the 
Beneficiary's actual work location while assigned to "(G]oing on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings ." In re Soffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter o.fTrea sure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Moreover, the Petitioner has not submitted any objective documentary evidence establishing the 
Beneficiary's actual job duties, wage, and other employment terms and conditions while assigned to 
Again, "going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings." In re Soffici , 22 I&N Dec. at 165. 
Without evidence of the Beneficiary 's actual work location, job duties, and other terms and 
conditions of employment for , the Petitioner has not established that the Beneficiary was 
employed in the same capacity specified in the petition. 
In addition, the Petitioner has not established that the Beneficiary's current assignment to another 
end-client, . is in the same employment capacity specified in the petition. The Beneficiary's job 
duties as listed in letter, dated May 27, 2015, are so broadly worded that they do not 
adequately convey the specific tasks to be performed by the Beneficiary. For example, there is no 
additional explanation of what specific tasks are involved in the duty of "[responding] to issues 
(incidents) created related to lAM & GRC environments," what these "lAM & GRC environments" 
are, and the nature of the project(s) to which the Beneficiary has been assigned. To the extent that 
his job duties are described in letter, they appear to be different from the duties listed in the 
Petitioner's April 25, 20 13, letter. For instance , the letter listed several duties related to servers, 
such as "[performing] scheduled maintenance of the servers" and "( s ]tartup/shutdown procedures for 
the servers," that are not listed in the Petitioner's letter. 
Moreover, the letter does not state the length of the Beneficiary 's assignment there. The 
letter also does not explain in detail other relevant employment conditions and terms, such as his pay 
rate and the manner and extent of the Petitioner 's control over the Beneficiary's work.2 As such, the 
Petitioner has not submitted sufficient, reliable evidence establishing that the Beneficiary 's 
employment capacity has not, and will not be, changed. 3 
2 While letter stated in conclusory terms that the Petitioner would direct, review, and supervise the Beneficiary 's 
work, it did not further explain these statements in factual detail. Without more, these are conclusory statements that are 
entitled to little probative weight. 
3 With respect to the two SOWs submitted between and the Petitioner, we find the Petitioner has not established the 
relevance of these documents to the Beneficiary . Neither document specifically lists the Beneficiary or a "Programm er 
Analyst" position as one of the required resources . In fact, the SOW dated December 11 , 2014, specifically lists the 
resources provided by the Petitioner as (Solution Architect), (Technical Manager/Sr. 
Consultant Middleware) , (Sr. Consultant- Oracle SOA Suite), and (Sr. Consultant - Oracle 
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(b)(6)
Matter of A-S-T- Corp. 
For all of the above reasons, the evidence of record is insufficient to establish that the Petitioner has 
employed and will continue to employ the Beneficiary in the same capacity specified in the petition 
for the entire validity period from October 11, 2013 to May 7, 2016. The Director therefore properly 
revoked 
the approval of the petition pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(A)(l). 
B. The Statement of Facts was Not True and Correct, Inaccurate, and Fraudulent 
As the Petitioner assigned the Beneficiary to end-clients, end-client locations, and job duties that 
were not previously disclosed in the initial petition and LCA, we find that the statement of facts 
contained in the petition was untrue and incorrect, inaccurate, or fraudulent. The Director therefore 
also properly revoked the approval of the petition pursuant to 8 C.F.R. § 214.2(h)(ll)(iii)(A)(2). 
C. The Petitioner Violated the Terms and Conditions of the Approved Petition 
We find that the Petitioner violated the terms and conditions of the approved petition, as the 
evidence of record is insufficient to establish that: ( 1) the Petitioner has maintained an employer­
employee relationship with the Beneficiary; (2) the proffered position continues to qualify as a 
specialty occupation; and (3) the LCA submitted to support the petition remains valid. 
As detailed above, the Petitioner did not submit sufficient, reliable evidence establishing the 
Beneficiary's job duties and other terms and conditions of employment for and The 
record of proceeding thus lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested or 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 will have actual 
control over the Beneficiary's work or duties, or the condition and scope of the Beneficiary's 
services. In other words, the Petitioner has not established whether it has 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, will 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-1B nonimmigrant worker). 
This specific lack of evidence also precludes a finding that the proffered position is a specialty 
occupation. Again, the record of proceeding does not contain sufficient, reliable documentation 
from the end-clients, and . regarding the specific job duties to be performed by the 
WebCenter Suite). The February 12, 2015, SOW lists the three consultants provided by the Petitioner as an IDM 
Architect, a Sr. IDM Consultant , 
and a Technical Writer, all of whom would perform different duties than those listed for 
the Beneficiary in letter dated May 28, 2015. We also note that both SOWs were for short-term projects: one 
which was to be "completed between 5-6 Weeks of schedule," and the other "expected to complete within three months." 
(b)(6)
Matter of A-S- T- Corp . 
Beneficiary for those companies. Without such documentation, the Petitioner has not established the 
substantive nature of the work to be performed by the Beneficiary, which therefore precludes a 
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 n01mal 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. See Defensor v. Meissner, 201 F.3d 384, 387-8 (5th Cir. 2000) (it 
is necessary for the end-client to provide sufficient information regarding the proposed job duties to 
be performed at its location(s)). 
As the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation . 
Furthermore, we find that the Petitioner has not submitted a valid LCA to support the petition . The 
LCA submitted with the petition did not include the Beneficiary's subsequent assignments to 
, and thus , is not valid. 
The Petitioner asserts that it was not required to submit a new LCA and an amended petition because 
the Beneficiary's work for was performed within the same MSAs covered by the 
initial LCA. However , the Petitioner ' s assertions are not persuasive . First , as we previously 
discussed, the Petitioner has not submitted sufficient evidence to corroborate its assertion that the 
Beneficiary's work for was performed remotely from the Petitioner's office. 
Second, the Petitioner is required to submit a new LCA and an amended petition whenever there are 
"any material changes in the terms and conditions of employment or training or the alien's eligibility 
as specified in the original approved petition ." 8 C.F.R. § 214.2(h)(2)(i)(E). The term "material 
changes in the terms and conditions of employment" encompasses not only the geographic location 
of the Beneficiary's changed employment, but also to any other salient aspects of the terms and 
conditions of his employment, such as his job duties, proffered wage, and factors relevant to 
determining the Petitioner ' s control over the Beneficiary. Thus, even ifthe Petitioner had established 
that the Beneficiary's subsequent assignments were all within the same MSAs, the other material 
changes to his employment still necessitated the filing of a new LCA and amended petition. As 
such, and without more, we cannot find that the submitted LCA is valid and supports the petition .
4 
4 While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note 
that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department 
responsible for determining whether the content of an LCA filed for a particular Form 1-129 actually supports that 
petition. The regulations state, in pertinent part: 
(b)(6)
Matter of A-S-T- Corp. 
For all of the above reasons, we find that the Petitioner violated the terms and conditions of the 
approved petition. The Director properly revoked the approval of the petition pursuant to 8 C.F.R. 
§ 214.2(h)(ll)(iii)(A)(3). 
D. The Approval of the Petition Violated Paragraph (h) of this Section or Involved Gross Error 
Finally, although not specifically addressed by the Director , we also find that the approval of the 
petition violated paragraph (h) of this section or involved gross error pursuant to 8 C .F.R. 
§ 214.2(h)(ll)(iii)(A)(5). Thus, it would have been within the Director's discretion to initiate 
revocation-on-notice proceedings on this basis . 
In the LCA, the Petitioner indicated that the Beneficiary would work at three locations: (1) the 
Petitioner's worksite ; (2) Illinois, which is the client worksite of 
; and (3) Illinois, belonging to an unidentified end-client. 
However, the record of proceeding does not contain sufficient, reliable evidence (such as copies of 
actual work contracts , statements of work, and other contractual agreements between the Petitioner 
and these end-clients) establishing the terms and conditions of the Beneficiary's assignments at all 
three locations. The record of proceeding does not contain any documentation from and the 
unidentified end-client at regarding the Beneficiary's assignments there. The 
Petitioner's April25, 2013, letter made no specific mention of the Beneficiary ' s assignments to 
and the unidentified end-client, either. 
Even if the job duties listed in the Petitioner ' s April25 , 2013, letter represented the Beneficiary's job 
duties at and the unidentified end-client , these job duties were so broadly worded that they did 
not adequately convey the specific tasks to be performed by the Beneficiary. For example , the 
Petitioner stated that the Beneficiary would be "[a]nalyzing test results and recommending 
modifications to the databases and applications to meet project specifications" and "[d]ocumenting 
modifications on enhancements made to the databases and applications as required by the project. " 
However, the Petitioner did not further identify and document what specific project(s) the 
Beneficiary would be assigned for to and the other end-client, the particular tasks he would 
perform for each project , and the body of knowledge required to perform these duties. Moreover , 
this letter did not explain other salient aspects of the Beneficiary ' s employment , such as how the 
For H-lB visas .. . DHS accepts the employer's petition (DHS Form l-129) with the DOL-certified 
LCA attached . In doing so, the DHS determ ines whether the petition is supp orted by an LCA which 
corresponds with the petition , whether the occupation named in the [LCA] is a specialty occupation or 
whether the individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutor y requirements for H-1 B visa classification . 
20 C.F.R. § 655.705 (b) (emphasis added) . 
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Matter of A-S-T- Corp. 
Petitioner directed, supervised, and otherwise maintained control over the Beneficiary's work 
performed off-site at different end-client worksites. 
Accordingly, without sufficient evidence establishing the terms and conditions of the Beneficiary's 
assignments at all end-clients, we cannot find that the Petitioner had established that, as of the time 
of filing, it had an employer-employee relationship with the Beneficiary and that the proffered 
position qualified as a specialty occupation. The approval of the petition based upon the limited 
evidence contained in the record of proceeding thus violated paragraph (h) of this section or 
involved gross error pursuant to 8 C.F.R. § 214.2(h)(l1)(iii)(A)(5). 
V. CONCLUSION 
The Director properly revoked the approval of the petition. The petition will be remain revoked and 
the appeal will be dismissed for the above stated reasons. 5 
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) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-S-T- Corp., ID# 15389 (AAO Feb. 10, 2016) 
5 We may deny an application or petition that does not comply with the technical requirements of the law even if the 
Director does not identify all of the grounds for denial in the initial decision. See Spencer Enters., Inc. v. United States, 
229 F. Supp. 2d l 025, l 043 (E.D. Cal. 200 l ); see also Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 20 15) 
(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 Enters., Inc. v. United 
States, 229 F. Supp. 2d at 1037; see also BDPCS, Inc. v. FCC, 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."). 
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