dismissed H-1B Case: Information Technology

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-R- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13.2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an IT company, seeks to temporarily employ the Beneficiary as a .. software 
engineer'' under the H-1 B nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The H-1 B 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. California Service Center, denied the petition. The Director concluded that the 
Petitioner tiled a duplicate H-18 petition on behalfofthe 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 tiled a duplicate H-1 B petition. 
Upon de novo review, we will dismiss the appeal. 
I. PROCEDURAL HISTORY 
In the Fonn I-129, Petition for a Nonimmigrant Worker, and the supporting documentation. the 
Petitioner indicated that the Beneficiary will work in-house at its location in 
Illinois. The labor condition application states that the protTered position corresponds to Standard 
Occupational Classification (SOC) code and occupation title '·15-1132, Sothvare Developers . 
Applications," from the Occupational Information Network (O*NET) at a Level I (entry) wage level. 
The Director found that another petitioner, tiled an H-1 B petition on 
behalf of the same Beneficiary. The Director sent a notice of intent to deny (N 0 I D) noting that the 
Petitioner and may be related entities based on the following similarities: 
• Both companies are located at the same address; 
• Both companies are seeking to employ the beneficiary for the same position of 
software engineer; 
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.TV!atter (l D-R- Inc. 
• Both companies are offering an annual salary of $75,000/yr.: 
• Both companies are seeking to employ the beneficiary for the same period of 
time: 
• Both companies have the same CFO, 
• Both petition[ s] were signed the same day: 
• Both petitions have the same representative, 
• Both letters of support show identical formats and are mostly verbatim[: and] 
• Both companies claim to provide in-house employment. 
In response to the NOlO. the Petitioner highlighted di1Terences in the companies and asse11ed that 
they were not related. The Director denied the petition, noting that both companies· federal income 
tax returns in 2014 showed 1 00 percent ownership by the same individual. 
Therefore. the Director found that the Petitioner and were affiliate entities that tiled 
multiple H-1 B petitions on behalf of the same Beneficiary without a legitimate business need. 
II. MULTIPLE H-1 B FILING 
A. Law 
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-1 B 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-1 B petition is denied. on a basis other than fraud or 
misrepresentation, the employer may tile 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 tiling qualities as exempt from the numerical limitation. Othenvise. 
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 tile more than one H-1 B petition on behalf of 
the same alien subject to the numerical limitations of section 214(g)(l)(A) ofthe Act 
or otherwise eligible for an exemption under section 214(g)(5)(C) of the Act USCIS 
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 tile 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. 
B. Analysis 
We reviewed the record in its entirety. including the H-1 B petition filed by and 
determine that the Petitioner has not demonstrated that it did not file duplicate H-1 B petitions for the 
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Matter (~f D-R- Inc. 
same Beneficiary. 1 Specifically. the Petitioner has not adequately established that it is not related to 
On appeaL the Petitioner claims that its prior corporate affiliation with terminated before 
the present petition was tiled. In support, the Petitioner submits the following documentation. which 
includes: 
• Stock transfer agreement; 2 
• Letter from the attorney who prepared the stock transfer paperwork: 
• Letter from stating a transfer of ownership has taken place: 
• Corporate file detail report: and 
• Change of registered office. 
The documents indicate that ownership transfer 
took place immediately prior to filing the petition. 
and that is the new stockholder. However. we note that as general evidence of 
ownership. stock transfer documentation alone is not sutlicient evidence to detem1ine whether a 
stockholder maintains ownership and control of a corporate entity. The corporate stock certificate 
ledger. stock certificate registry. corporate bylaws. and the minutes of relevant annual shareholder 
meetings must also be examined to determine the total number of shares issued. the exact number 
issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally. to determine whether de facto control exists. the Petitioner should disclose all 
agreements relating to the voting of shares. the distribution of profit. the management and direction 
of the subsidiary. and any other factor atTecting actual control of the entity. See lvfatler l?/Siemens 
lvfedical S'ystems. Inc .. 19 I&N Dec. 362 (Comm 'r 1986 ). The Petitioner does not include copies of 
its corporate stock certificate ledger. stock certificate registry. corporate bylaws. and minutes. 
Without full disclosure of all relevant documents, we are unable to detennine the elements of 
ownership and control. 
Further, we 
note that despite transfer ofthe Petitioner's shares. the Petitioner and are still 
in the same office space. share the same chief financial officer. and tiled nearly identical petitions on 
the Beneficiary's behalf. Further. the Petitioner's new stockholder is the chief technical officer for 
In sum. we find that the Petitioner has not submitted sufticicnt documentation to demonstrate that its 
previous ow11er no longer has any ownership interest in or control over the Petitioner given the close 
nexus in business operations that still appears to exist between the two companies. Therefore. the 
1 The tile number for the petition filed by is The Petitioner submitted documentation to 
support the H-1 B petition. including evidence regarding the proffered position and the Petitioner's business 
operations. While we may not discuss everv document submitted. we have reviewed and considered each one. 
2 The transfer agreement is dated January 2, 20 15; notably, the annual report indicates that shares of stock were 
authorized and issued only on December 31. 2014, immediately prior to the sale. when the Petitioner was established in 
2009. 
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Matter (?f D-R- Inc. 
Petitioner has not established that the Director's decision to deny the petition pursuant to 8 C.F.R. 
§ 214.2(h)(2)(i)(G) was in error. 
III. SPECIALTY OCCUPATION 
As an additional basis, even if the Petitioner could demonstrate that it is no longer related to 
and it did not file multiple H-IB petitions in violation of8 C.F.R. § 214.2(h)(2)(i)(G), we 
find that the Petitioner has not demonstrated that the proffered position qualifies as a specialty 
occupation. 3 Specifically, the record (I) does not describe the position's duties with sufticient detail; 
and (2) does not establish that the job duties require an educational background, or its equivalent, 
commensurate with a specialty occupation. 4 
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 protTered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is nom1ally 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 
.l In reviewing a matter de nom, we may identify additional issues not addressed below in the Director's decision. See 
5i'pencer Enterprises. Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afl'd. 345 F.3d 683 (9th Cir. 
2003) ("The AAO may deny an application or petition on a ground not identified by 
the Service Center."). 
4 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the protfered 
position and its business operations. While we may not discuss every document submitted. we have reviewed and 
considered each one. 
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Matter l~{ D-R- Inc. 
( ../) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated \vith 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. S'ee Royal Siam Cmp. v. Cherlld!: 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. Aleissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
We find that the record of proceedings contains inconsistencies that undermine the Petitioner's 
claims 
regarding the proffered position. 5 Specifically, in response to the NOlO, the Petitioner stated 
that the Beneficiary "'will be working on supporting our customer by 
completing engineering and development tasks from 
the [Petitioner's] otlice in IL"' 
and that he .. will ... become part of the support team... According to the 
Petitioner's master services agreement (MSA) with which 
is located in California, a Statement of Work (SOW) has to be issued for services and deliverables. 
However, the Petitioner did not submit a copy of SOW in support of the MSA. Without a copy of 
the SOW or similar documentation describing the specific duties the Petitioner requires the 
Beneficiary 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 of the alternate criteria under 8 C.F.R. § 
214.2(h)( 4 )(iii)(A). 7 
5 The Petitioner listed the worksite as in-house at IL llowever. the 
copy of the lease submitted by the Petitioner for the address indicates that the lease is for 200 square 
feet of space. The Petitioner has not indicated how many employees are working at this location; however. it seems 
unlikely that 200 square feet of space is sufficient given that both the Petitioner and share this office suite. 
<• We note that the copy of the contract submitted was only signed by the Petitioner and not by which calls 
into question the existence of specialty occupation work for the Beneficiary. 
7 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example. a 
1998 proposed rule documented this position as follows: 
Historically. the Service has not granted H-1 8 classification on the basis of speculative. or 
undetermined, prospective employment. The 11-18 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 
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Matter (~j'D-R- Inc. 
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 r. 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 qualities 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 qualities as a specialty occupation. Therefore. we cannot determine that description of the 
proffered position communicates: ( 1) the actual work that the Beneficiary would perfonn: (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. ··[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent 
objective evidence." lvlatter 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 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 ofthat work that determines: (1) the normal 
minimum educational requirement for the particular position. which is the focus of criterion I: 
(2) industry positions which are parallel to the proffered position and thus appropriate tor 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. 
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 tor 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 
Matter of D-R- Inc. 
IV. EMPLOYER-EMPLOYEE 
Finally. the petition cannot be approved because the Petitioner has not demonstrated that it qualities 
as a United States employer. 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 \Vill 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 tide offer of employment to the 
Beneficiary based on the evidence of record or that the Petitioner. or any other company which it 
may represent \Vill 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-1 B nonimmigrant worker). Again and as previously discussed. there is insuflicient 
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. 
Therefore, the petition cannot be approved for this additional reason. 
V. 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: Matter l?{Otiende. 26 I&N Dec. 127. 128 
(BIA 2013). Here. that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as lvfatter l?ID-R- Inc .. ID# 16708 (AAO June 13, 2016)