dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 12033520 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 29, 2020 
The Petitioner , an information technology consulting company, seeks to temporarily employ the 
Beneficiary as a "systems analyst" under the H-lB 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-lB 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 Vermont Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation. The matter is now before us 
on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. THE PROFFERED POSITION 
The Petitioner is a computer consulting company based inl I Illinois. At the time of filing, 1 
the Petitioner stated that the Beneficiary will be assigned to an end-client,! I 
at their office inl I Illinois, for the duration of the requested period. However, in its initial 
letter of support, the Petitioner identified the end-client the Beneficiary would be assigned to as I I I , I located inl I Georgia. 2 The Petitioner then submitted a copy of a Statement of Work 
(SOW) from I ldated October 2014, a letter from I lbriefly 
confirming its contract with the Petitioner, and an Itinerary of Services for the Beneficiary identifying 
.__ _______ _.I as the end-client and an address in I ,I Georgia as the work location. The 
1 On the Form I-129 and the accompanying Labor Condition Application , Fonn ET A-9035 /903"'"5'-"E..,_. ------
2 We note that while the letter of support consistently referred to the assigned end-client as.__ ______ the 
Petitioner made a single reference tol rhen discussing the duration of the business relationship 
with its end-client. 
Petitioner described the proffered position as a "systems analyst" and provided a list of job duties, along 
with the percentages of time devoted to those duties and additional tasks he would perform in carrying 
out the duties. 
In the Director's request for evidence (RFE), the Director highlighted this discrepancy and asked the 
Petitioner to provide additional evidence to resolve this issue and support the work location identified 
on the submitted Labor Condition Application (LCA). 
In response to the Director's RFE, the Petitioner did not specifically address the discrepancy, nor did the 
Petitioner provide any explanation for the contradictory information found in the record. 3 The Petitioner 
simply stated that the end-client i~ I and that the Beneficiary would be located 
at their office itj I Illinois. The Petitioner then submitted a copy of a Consulting and Service 
Agreement wit~ l a Task Order froml I a 
letter froml I briefly confirming its contract with the Petitioner, and a new 
Itinerary of Services for the Beneficiary identifying I as the end-client and an 
address inl I Illinois as the work location. Although the Petitioner indicated that the 
Beneficiary would be assigned to a different project for a different end-client, the job duties of the 
position remained the same. 
On appeal, the Petitioner reverts the assignment of the proffered P.Osition to and 
specifically states that its "vastly growing project at client site,'------.========-=-=="'-', needs a 
group of qualified Systems Analysts to join [the Petitioner's] core teams at.__ _________ ~ and that 
"[the Beneficiary] will join as a Systems Analyst and serve as one of the essential members of this 
project." The Petitioner farther states that 'l I is [the Petitioner's] client, a partner in 
implementing the highly complex programs and initiatives and is the third-party placement where [the 
Beneficiary] will be working." 
The Petitioner then submits a letter from.__ ______ ~, dated March 2018, addressing it's 
contract with the Petitioner and providing the job duties for software developer positions, an updated 
SOW froml I dated May 2019, a copy of the previous! lletter 
submitted in support of the petition, and a copy of the first Itinerary of Services for the Beneficiary 
identifying.__ _______ ~ as the end-client and an address inl I Georgia as the work 
location. Again, on appeal, the job duties of the position remained the same, though the percentages 
of time devoted to each duty were changed. 
II. SPECIALTY OCCUPATION 
We have determined that the proffered position does not qualify as a specialty occupation. 
Specifically, based on the conflicting documentation and statements provided by the Petitioner, the 
actual assignment for the Beneficiary in the proffered position is unclear. First, while the Petitioner 
indicated on the Form I-129 and the LCA that the Beneficiary will be assigned to a project with 
.__ _________ ~in I I Illinois, the documentation submitted in support of the 
petition stated that the Beneficiary will be assigned to a project with I ]inl I 
Georgia. Then, in response to the RFE, the Petitioner stated that the Beneficiary will be assigned to a 
3 We note that the Petitioner simply stated that~I -----~I is another one of its clients. 
2 
project wit ___________ ~ and did not address the conflicting information presented at 
the time of filing. Now, on appeall the Petitioner again states that the Beneficiary will be assigned to 
a project with I . inl !Georgia. Given all of the conflicting information found 
in the record, and the Petitioner's lack of clarification, it appears that the Petitioner has materially 
changed the position offered to the Beneficiary prior to the adjudication of the petition (see the 
information pertaining to end-client assignments above), which 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)(l)-(4). 
Simply stated, the actual employment and assignment of the Beneficiary remains unclear in the record 
and it appears that 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. 
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)(l). 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 Izwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
As a result, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform. This precludes a conclusion 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 one; 
(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 two; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion three; and ( 5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion four. Therefore, we cannot conclude 
that the proffered position qualifies for classification as a specialty occupation. 
III. LABOR CONDITION APPLICATION 
Additionally, we find that the Petitioner has not established filing eligibility at the time of filing the 
instant petition. 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): 
3 
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 
other USCIS instructions. Any evidence submitted in connection with a benefit request 
is incorporated into and considered part of the request. 
The regulations require that before filing a Form 1-129 on behalf of an H-lB worker, a petitioner obtain 
a certified LCA from DOL 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 1-129 also specify that an 
H-lB petitioner must submit evidence that an LCA has been certified by DOL when submitting the 
Form 1-129. 
In this matter, the Petitioner indicated on the Form 1-129 and the LCA that the Beneficiary will work 
off-site at an end-client's location inl !Illinois. However, throughout all of the initial 
supporting documentation, and again on appeal, the Petitioner states that the Beneficiary will work 
off-site at a different end-client's location inl I Georgia for the duration of the H-lB employment 
period, i.e., October 1, 2019 to August 19, 2022. The certified LCA submitted with the Form 1-129 
indicates that the Beneficiary will work only at thel I Illinois office from August 20, 2019 
to August 19, 2022. On appeal, however, the Petitioner reverts the Beneficiary's assignment to a 
different end-client's location inl I Georgia. 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) 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. An amended or new H-lC, H-lB, H-2A, 
or H-2B petition must be accompanied by a current or new Department of Labor 
determination. In the case of an H-lB petition, this requirement includes a new labor 
condition application. 
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 1-129 is a material change in the terms and conditions of employment. 
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 !Illinois, it also stated, in the initial 
evidence and again on appeal, that the Beneficiary's position was assigned to a different end-client in 
,.__ _ ___.I Georgia. As such, the Petitioner in this case was required to submit an amended or new H-1 B 
petition with USCIS indicating the different 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 
4 
branch, USeIS) is the department responsible for determining whether the content of an LeA filed for 
a particular Form I-129 actually supports that petition. The regulations state, in pertinent part: 
For H-lB visas ... DHS accepts the employer's petition (DHS Form I-129) with the 
DOL-certified LeA 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 [Le A] 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-lB visa classification. 
20 e.F.R. § 655.705(b) (emphasis added). 
As 20 e.F.R. § 655.705(b) requires that users ensure that an H-lB petition is filed with a "DOL­
certified LeA attached" that actually supports and corresponds with the petition on the petition's 
filing, this regulation inherently necessitates the filing of an amended H-1 B petition to permit users 
to perform its regulatory duty to ensure that a certified LeA actually supports and corresponds with 
an H-lB petition as of the date of that petition's filing. In addition, as 8 e.F.R. § 103.2(b)(l) requires 
eligibility to be established at the time of filing, it is factually impossible for an LeA certified by DOL 
after the filing of an initial H-lB petition to establish eligibility at the time the initial petition was filed. 
Therefore, in order for a petitioner to comply with 8 e.F.R. § 103.2(b)(l) and users to perform its 
regulatory duties under 20 e.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 LeA is required to be filed 
with DOL. 
In light of the above, we conclude that a necessary condition for approval of an H-1 B visa petition is 
an Le A, 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 conflicting information about the Beneficiary's assignment for off-site employment 
throughout the record 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 e.F.R. § 103 .2(b )(1 ). 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 eomm'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 further 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. 
5 
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, and we conclude that the petition cannot be approved 
on this additional ground. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 4 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. 
4 As this issue precludes approval of the petition, we will not address any of the additional matters we have observed in 
our de novo review of this matter, except to notify the Petitioner that the record is not currently sufficient to establish that 
the Beneficiary is qualified to perform the duties of the proffered position. Specifically, the Petitioner did not submit an 
evaluation of the Beneficiary's foreign degree or sufficient evidence to establish that his degree is equivalent to a U.S. 
bachelor's degree in a specific specialty. The Petitioner should be prepared to address this issue in any future H-lB filings. 
6