dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6584944 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 29, 2020 
The Petitioner , an information technology consulting firm, seeks to temporarily employ the 
Beneficiary as a "software engineer" under the H-IB 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-IB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the Petitioner obtained a valid labor condition application for the proffered position prior 
to the filing of the petition. 
On appeal, the Petitioner submits a brief and asserts that the Director erred in denying the petition. 
Upon de nova review, we will dismiss the appeal. 1 
I. THE PROFFERED POSITION 
The Petitioner is a computer consulting company based in I I Illinois. At the time of 
filing, the Petitioner stated that the Beneficiary will be assigned to an end-client,I I at 
their office in I I California, for the duration of the requested period. The Petitioner described 
the proffered position as a "software engineer" and provided a list of duties the Beneficiary would 
perform in the proffered position withl I along with the percentages of time the 
Beneficiary would devote to each. 
The Petitioner initially identified the path of contractual succession 2 for the Beneficiary's services as 
follows: 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
2 While the Petitioner provided a letter from I I it did not provide evidence of a contractual obligation 
by any of the listed vendors or the claimed end-client, thus not providing sufficient evidence of a current obligation on the 
part of the end-client to provide work to the Beneficiary . 
Petitioner I 
(vendor I) 
D 
(vendor 2) (vendor 3) 
I I 
(end-client) 
However in r:sponse J° the Director's request for evidence (RFE), the Petitioner stated that the project 
withl ended in June 2018 and that the Beneficiary will be assigned to a different end-
client, .__ _______ _., at their office inl I Wisconsin, for the duration of the requested 
period. The Petitioner then submitted a new Labor Condition Application (LCA) for the Beneficiary's 
newly proffered position at the newly assigned physical location. The Petitioner did not provide 
information about the duties or responsibilities of the new position. However, the Petitioner did provide 
a copy of a new Employment Offer Letter to the Beneficiary for a "software engineer" position that 
included a new list of duties, different from those provided for the previously stated proffered position. 
The Petitioner then identified a new path of contractual succession3 for the Beneficiary's services as 
follows: 
Petitioner 
I 
....._________,I ............... 1 J . (vendor) . 
I I 
(end-client) 
~al, the Petitioner affirmed the Beneficiary's reassignment to the end-client, I 
L___J, located in I I Wisconsin. .__ ___ ___, 
II. LEGAL FRAMEWORK 
General requirements for filing immigration applications and petitions are set forth at 8 C.F.R. 
§ 103.2(a)(l), in pertinent part, as follows: 
Every benefit request or other document submitted to DHS must be executed and filed 
in accordance with the form instructions ... and such instructions are incorporated into 
the regulations requiring its submission. 
Further discussion of the filing requirements for applications and petitions is found at 8 C.F.R. 
§ 103.2(b)(l): 
Demonstrating eligibility. An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the benefit request and must 
continue to be eligible through adjudication. Each benefit request must be properly 
completed and filed with all initial evidence required by applicable regulations and 
3 While the Petitioner provided a copy of a "contractor agreement" with.__ _______ ___, it did not provide 
sufficient evidence of a current obligation on the part of the new end-client to provide work to the Beneficiary. Further, 
the "contractor agreement" with the new vendor was signed in June 2018, two months after the filing of the instant petition. 
2 
other USCIS instructions. Any evidence submitted in connection with a benefit request 
is incorporated into and considered part of the request. 
With the filing of any H-1 B petition, the petitioner shall submit, among other evidence, "[a] statement 
that it will comply with the terms of the labor condition application for the duration of the alien's 
authorized period of stay." 8 C.F.R. 214.2(h)(4)(iii)(B)(2). 
If and when there is any material change to the terms and conditions of H-lB employment, the 
regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) requires a new or amended petition and LCA to be filed. 
Specifically, this regulation states: 
Amended or new petition. The petitioner shall file an amended or new petition, with 
fee, with the Service Center where the original petition was filed to reflect any material 
changes in the terms and conditions of employment or training or the alien's eligibility 
as specified in the original approved petition . . . . In the case of an H-1 B petition, this 
requirement includes a new labor condition application. 
Additionally, 8 C.F.R. § 214.2(h)(l l)(i)(A) states that the petitioner "shall immediately notify the 
Service of any changes in the terms and conditions of employment of a beneficiary which may affect 
eligibility under section 10l(a)(15)(H) of the Act and paragraph (h) of this section," and that "[a]n 
amended petition on Form 1-129 should be filed when the petitioner continues to employ the 
beneficiary." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not overcome the Director's decision to deny the petition. 
A. Availability of Specialty Occupation Work Pursuant to H-lB Petition and LCA 
First, we find that the Petitioner has not demonstrated the availability of specialty occupation work 
pursuant to the original terms and conditions of the H-lB petition and LCA. See 8 C.F.R. 
214.2(h)(4)(iii)(B)(2); 8 C.F.R. § 103.2(b)(l) (the petitioner must establish eligibility at the time of 
filing its petition); Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978) (a visa 
petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts). 
Simply stated, the Beneficiary will not be employed in the same, original capacity specified on the 
H-lB petition and LCA: to work for the original end-client, pursuant to the terms and conditions set 
out in the original path of contractual succession for the entire validity period. As the Petitioner 
admits, the Beneficiary will now work for a new end-client pursuant to a new contractual path of 
succession. The viability of the instant H-lB petition ended with the termination of the Beneficiary's 
assignment to the original end-client. 
3 
We acknowledge the Petitioner's statements and documents regarding the Beneficiary's new 
assignment. However, that evidence was not properly presented in pursuit of this petition, as the 
Petitioner has not demonstrated that there has not been any material change to the Beneficiary's 
employment. To the contrary, the Petitioner conceded in its September 2018 letter that there had been 
a material change in the Beneficiary's employment. Again, a petitioner must "immediately" file an 
amended petition whenever there are any "material changes" in the terms and conditions of a 
beneficiary's H-lB employment. 8 C.F.R. § 214.2(h)(2)(i)(E); 8 C.F.R. § 215.2(h)(ll)(i)(A). See 
Simeio, 26 I&N Dec. 542. For this reason alone, the petition cannot be approved. 
B. TheNewLCA 
Even if this were not the case, the petition could not be approved because the new LCA was certified 
after the H-lB petition was filed. Again, the regulations require that before filing a Form I-129 on 
behalf of an H-1 B worker, a petitioner obtain a certified LCA from DO L in the occupational specialty 
in which the H-lB worker will be employed. See 8 C.F.R. § 214.2(h)(4)(i)(B). The instructions that 
accompany the Form I-129 also specify that an H-lB petitioner must submit evidence that an LCA 
has been certified by DOL when submitting the Form I-129. 
In this matter, the Petitioner indicated on the Form I-129 that the Beneficiary would work off-site at 
an end-client's location in California. The certified LCA submitted with the Form I-129 
lists the end-client's location in California and also indicates a second place of 
employment at the Petitioner's office in~------~ Illinois. However, at the time of filing, 
the Petitioner did not identify any work the Beneficiary would perform at its office in Illinois, other 
than a sentence in the Beneficiary's Employment Offer Letter, stating "if the current assignment with 
the Client location ends abruptly, you are required to report back at [the Petitioner's] premises 
immediately." The Petitioner did not define the Beneficiary's position, job duties, or assigned project 
at its office, and it failed to submit an itinerary for the Beneficiary's employment, as required by the 
regulations at 8 C.F.R. § 214.2(h)(2)(i)(B). 4 
Then, in response to the RFE, when identifying the material changes in the proffered position, the 
Petitioner made another reference to the Beneficiary's "in-house" assignment at its office in Illinois, 
stating "[i]t was Petitioner's intent to provide employment to the Beneficiary beginning from 
10/01/2018 either on a client engagement or Petitioner's in-house assignment and therefore Petitioner 
has listed both the locations as proposed place(s) of Beneficiary's employment." However, again, the 
Petitioner did not define the Beneficiary's position, job duties, or assigned project at its office. 
Moreover, in response to the RFE, the Petitioner stated that it changed the Beneficiary's employment 
and would henceforth place him off-site at a new end-client's location in I I Wisconsin for the 
duration of the H-lB employment period, i.e., October 1, 2018 to September 21, 2021. The newly 
4 The regulation at 8 C.F.R. ~ 214.2(h)(2)(i)(B) states, in pertinent part: 
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 
of the 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 1-129 shall be where the petitioner is 
located for purposes of this paragraph. 
4 
certified LCA submitted in response to the RFE lists the new end-client's location inll 
Wisconsin, but does not include a second place of employment at the Petitioner's office inc=:=J 
I I Illinois. On arpeal, the Petitioner affirms its new assignment to the Beneficiary at the new 
end-client's location in !Wisconsin. 
Again, if and when there is any material change to the terms and conditions of H-1 B employment, the 
regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) requires a new or amended petition and LCA to be filed. It 
is self-evident that a change in the location of a beneficiary's work to a geographical area not covered 
by the LCA filed with the Form I-129 is a material change in the terms and conditions of employment. 5 
Because work locations are critical to the Petitioner's wage rate obligations, the change deprives the 
petition of an LCA supporting the periods of work to be performed at the newly listed location, and 
certified on or before the date the instant petition was filed. While the Petitioner submitted an LCA 
for the Beneficiary's employment at its client's site inl I California, it also stated, in 
response to the RFE, that the Beneficiary's position has been reassigned to a new end-client in 
I !Wisconsin. As such, the Petitioner in this case was required to submit an amended or new 
H-1 B petition with USCIS indicating the new end-client's location and dates along with the newly 
certified LCA that establishes eligibility at the time that a new or amended petition is filed. 
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: 
For H-lB visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL-certified LCA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the 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 statutory requirements for H-1 B visa classification. 
20 C.F.R. § 655.705(b) (emphasis added). 
As 20 C.F.R. § 655.705(b) requires that USCIS ensure that an H-lB 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-lB 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.F.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)(l) and USCIS to perform its 
regulatory duties under 20 C.F.R. § 655.705(b), a petitioner must file an 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. 
5 We further note that the Petitioner also changed the wage level designation of the newly proffered position in the new 
LCA from a wage level I to a wage level II. 
5 
In light of the above, we conclude 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. This condition was 
not satisfied in this proceeding. The Petitioner's attempt to make material changes to the petition by 
submitting new information about reassigning the Beneficiary's off-site employment in response to 
the RFE raises concerns as to the validity of the proffered position. 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. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Further, the 
Petitioner must resolve inconsistencies with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies 
may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. 
It is farther noted that to ascertain the intent of a petitioner, we must look to the Form I-129 and the 
documents filed in support of the petition. It is only in this manner that we 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-lB petition has been adjudicated. 6 
In view of the foregoing, the petition cannot be approved for this reason alone. Accordingly, we will 
not disturb the Director's denial of the petition. 
6 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- lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-lB 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 tempormy 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) 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-lB 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). 
6 
C. Specialty Occupation 
In addition, we have also determined that the original proffered position does not qualify as a specialty 
occupation. Specifically, by the Petitioner's own admission, the position initially proffered for the 
Beneficiary at the time of filing the instant petition no longer exists. 7 In response to the RFE, the 
Petitioner stated that the assignment with the end-client in the original proffered position ended and it 
has assigned the Beneficiary to a new position with a new end-client at a new location. Therefore, we 
conclude that the absence of the initial proffered position, given that the Petitioner materially changed 
the position offered to the Beneficiary prior to the adjudication of the petition (see the descriptions 
and duties of the positions above), precludes a determination that the proffered position qualifies as a 
specialty occupation under at least one of the four regulatory specialty-occupation criteria enumerated 
at 8 C.F.R. § 214.2(h)(4)(iii)(A)(])-(4). 
Simply stated, the Beneficiary will not be employed in the same, original capacity specified on the 
H-lB petition and LCA: to work for the original end-client for the entire validity period requested. 
The viability of the instant H-1 B petition ended with the termination of the Beneficiary's assignment 
with the original end-client. USCIS regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed and must continue to be eligible 
for the benefit through adjudication. See 8 C.F.R. § 103.2(b )(1 ). A visa petition may not be approved 
based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under 
a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). Accordingly, we conclude that the petition cannot be approved for this additional reason. 
IV. CONCLUSION 
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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
7 The Petitioner submitted documentation in support of the H-IB 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. 
7