dismissed H-1B Case: Information Technology

MATTER OFF-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 27, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an information technology and software development company, seeks to temporarily 
employ the Beneficiary as a "software engineer" 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)(15)(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, initially approved the petition. Upon subsequent review, the 
Director revoked the approval of the petition, concluding that the Petitioner filed a duplicate H-1B 
petition on behalf of the Beneficiary in the same fiscal year without a legitimate business need. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in finding that the Petitioner filed a duplicate H-1B petition. 
Upon de novo review, we will dismiss the appeal. 
I. REVOCATION 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-1B petition, 
on notice and an opportunity to rebut, 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 was not true and correct, inaccurate, 
fraudulent, or misrepresented a material fact; or 
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(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101(a)(15)(H) ofthe Act or paragraph 
(h) ofthis section; or 
(5) The approval of the petition violated paragraph (h) of this section or involved gross 
error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of 
the grounds for the revocation and the time period allowed for the petitioner's rebuttal. 
The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. 
The director shall consider all relevant evidence presented in deciding whether to revoke 
the petition in whole or in part. If the petition is revoked in part, the remainder of the 
petition shall remain approved and a revised approval notice shall be sent to the 
petitioner with the revocation notice. 
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)(5). 
II. PROCEDURAL HISTORY 
In the Form I-129, Petition for a Nonimmigrant Worker, and the supporting documentation, the 
Petitioner indicated that the Beneficiary will work offsite at New 
Jersey an address identified as that of the Petitioner's end client, (End 
Client). The labor condition application states that the proffered position corresponds to Standard 
Occupational Classification (SOC) code and occupation title "15-1132, Software Developers, 
Applications," from the Occupational Information Network (O*NET) at a Level II (qualified) wage 
level. 
The Director initially approved the petition on May 2, 2014. Thereafter, the Dir(fctor issued a notice 
of intent to revoke (NOIR), stating that the approval involved gross error. Specifically, the Director 
indicated that the Petitioner and another employer, filed H-lB 
petitions for the same Beneficiary, and they appeared to be related entities that filed multiple H-lB 
petitions in violation of8 C.F.R. § 214.2(h)(2)(i)(G). 
After reviewing the Petitioner's response to the NOIR, the Director revoked the approval of the 
petition, finding that the Petitioner had not overcome the grounds for revocation. On appeal, the 
Petitioner asserts that the Director's decision was erroneous, and maintains that it is not affiliated 
with 
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III. MULTIPLE H-1B FILING 
We reviewed the record in its entirety, including the H-1B petition filed by and 
determine that the Director's decision to revoke 
the petition pursuant to 8 C.F.R. 
§ 214.2(h)(ll )(iii)(A)(5) was correct. 1 Specifically, the Petitioner has not adequately established 
that it is not related to 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(G) states, in pertinent part, the following:, 
An employer may not file, in the same fiscal year, more than one H-1B petition on 
behalf of the same alien if the alien is subject to the numerical limitations of section 
214(g)(l )(A) of the Act or is exempt from those limitations under section 
214(g)(5)(C) of the Act. If an H-1B petition is denied, on a basis other than fraud or 
misrepresentation, the employer may file a subsequent H-1 B petition on behalf of the 
same alien in the same fiscal year, provided that the numerical limitation has not been 
reached or if the filing qualifies as exempt from the numerical limitation. Otherwise, 
filing more than one H-1 B petition by an employer on behalf of the same alien in the 
same fiscal year will result in the denial or revocation of all such petitions. If USC IS 
believes that related entities (such as a parent company, subsidiary, or affiliate) may 
not have a legitimate business need to file more than one H-1 B petition on behalf of 
the same alien subject to the numerical limitations of section 214(g)(l )(A) of the Act 
or otherwise eligible for an exemption under section 214(g)( 5)(C) of the Act, USC IS 
may issue a request for additional evidence or notice of intent to deny, or notice of 
intent to revoke each petition. If any of the related entities fail to demonstrate a 
legitimate business need to file an H-1 B petition on behalf of the same alien, all 
petitions filed on that alien's behalf by the related entities will be denied or revoked. 
We find that the Petitioner has not provided sufficient evidence to rebut the Director's finding that 
the Petitioner and are related entities. In response to the NOIR, the Petitioner asserted 
that it and are "totally unrelated entities" and the fact that both petitions were filed by the 
same attorney is "pure coincidence." The Petitioner concluded by stating that "we are unable to 
provide any documents on behalf of as we have no control over them nor any 
relationship with them, corporate or otherwise." 
The Petitioner submitted the following documentation in response to the NOIR: 
• Letter from Corporate Counsel; 
• Articles of Incorporation of 2 
• Amended By-Laws of 
• Shareholders' Agreement; 
1 The file number for the petition filed by is 
2 
The Petitioner claims to be the successor-in-interest of 
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• Certificate of Amendment -
• Director's Consent- Petitioner; 
• Share Transfer Agreement; 
• Shareholders' Resolutions; and 
• Copy of the Petitioner's 2013 IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation. 
On appeal, the Petitioner asserts that these documents confirm that the Petitioner is not in any way 
affiliated with 
While the entities may be separately incorporated and do not appear to be affiliates or to have a 
parent-subsidiary relationship, they, nevertheless, appear to be closely connected. Again, the 
petitions filed by the Petitioner and are virtually identical, and identify the same job 
duties, the same end client, and the same work location. Moreover, the petition filed by 
contains a letter from the Petitioner, dated March 4, 2014, which states that "[the Petitioner] has 
been contracted with for the professional services to be provided to this project which 
is a long term assignment. ... " As noted by the Director, this statement directly contradicts the 
Petitioner's statements in response to the NOIR, where it claimed that it has no relationship, 
"corporate or otherwise," with "[I]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. !d. at 591-92. 
The Petitioner acknowledges that it has been contracted with to provide services on the 
End Client project, in contrast to its prior assertions. There is no evidence, however, that the End 
Client requested 
multiple filings for its business need. Therefore, we find that the Petitioner did not 
establish 
a legitimate business need for filing multiple H-1B petitions. 
IV. SPECIALTY OCCUPATION 
Even if the Petitioner were to overcome the ground for the Director's revocation of the approval of 
the petition, it could not be found eligible for the benefit sought because the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation. Specifically, the record 
(1) does not describe the position's duties with sufficient detail; and (2) does not establish that the 
job duties require an educational background, or its equivalent, commensurate with a specialty 
occupation. 3 
3 The Petitioner submitted documentation to support the H-1 8 petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
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A. Law 
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. 
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). 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. Cherto.IJ, 
484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific specialty" as "one 
that relates directly to the duties and responsibilities of a particular position"); Defensor v. Meissner, 
201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
We find that the record of proceedings contains insufficient evidence regarding the duties of the 
proffered position. In support of the petition, the Petitioner submitted a letter from the End Client 
which claims that it has contracted with the Petitioner for management of its ' 
project, pursuant to an executed Master Services Agreement (MSA). The letter briefly described the 
duties of the proffered position in list format. However, the Petitioner did not submit a copy of the 
MSA or any additional documentation, such as a statement of work, which would describe the nature 
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Matter of F-,Inc. 
of the project in detail and the Beneficiary's proposed duties as related to the 
project. Without a copy of the MSA or similar documentation confirming that existence of this 
project and describing the specific duties the Beneficiary is required to perform, we cannot discern 
the nature of the position or whether the position requires the theoretical and practical application of 
a body of highly specialized knowledge attained through a baccalaureate program. Without a 
meaningful job description within the context of non-speculative employment, the Petitioner may 
not establish any ofthe alternate criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 4 
We note 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' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d 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. !d. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
The record lacks evidence sufficiently concrete and informative to demonstrate that the proffered 
position qualifies as a specialty occupation. Therefore, we cannot determine that description of the 
proffered position communicates: (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 leve! education of highly specialized knowledge in a: specific 
specialty. As previously noted, "it is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence." Matter of Ho, 19 I&N Dec. at 591. Any attempt to explain or 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-IB 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-1 B 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) ofthe 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. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
1998) (to be codified at 8 C.F.R. pt. 214). 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). 
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Matter ofF-, Inc. 
reconcile such inconsistencies will not suffice unless. the petitioner submits competent objective 
evidence pointing to where the truth lies. !d. at 591-92. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently 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 normal 
minimum educational requirement for 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. Accordingly, 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 as a specialty occupation. 
V. EMPLOYER-EMPLOYEE 
Finally, the petition could not be approved because the Petitioner has not demonstrated that it 
qualifies as a United States employer. 
For H-1B 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). The Petitioner did not submit such an agreement, and only briefly summarized the terms of the 
Beneficiary's employment in its letter of support submitted with the petition. Although the 
Petitioner submitted a letter from' the End Client, the letter does not identify the Beneficiary by 
name, and does not provide any level of specificity as to the Beneficiary's duties and the 
requirements for the position. The letter also does not list the length of employment or any specific 
projects to be assigned, and states only that the project is expected to last through 2017. 
Moreover, the Petitioner has not sufficiently established its relationship with the End Client. 
Although the End Client refers to an MSA in its March 4, 2014, letter, the record does not contain a 
copy of the MSA or any other documentation to corroborate the claimed contractual relationship and 
to substantiate work for the duration of the requested period. 
As stated in the Form I-129 and the Labor Condition Application, the Petitioner has indicated that 
the Beneficiary would work at the offices of its End Client, as a software engineer, for the duration 
of the petition. The Petitioner did not list its own, or any other office location, as a worksite in the 
petition. Therefore, the Beneficiary's work is solely based on the existence of sufficient work to be 
performed for the End Client. However, for the reasons discussed above, we find insufficient 
evidence to establish the existence of the claimed contractual agreement and consequently, the 
Matter ofF-, Inc. 
claimed project, upon which the Beneficiary will work, or that the Petitioner alternatively has 
specialty occupation work available for the Beneficiary for the duration of the requested period. 
As detailed above, the record of proceedings 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 
corroborated who has or will have actual coptrol 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 
the requisite 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). Again 
and as previously discussed, there is insufficient evidence detailing where the Beneficiary will work, 
the specific projects to be performed by the Beneficiary, or for which company the Beneficiary will 
ultimately perform these services. 
VI. CONCLUSION 
The Director properly revoked the approval of the petition. The petition will remain revoked and the 
appeal will be dismissed for the above stated reasons. 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-, Inc., ID# 17286 (AAO July 27, 2016) 
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