dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6412571 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
The Petitioner , an information technology consulting firm, seeks to temporarily employ the 
Beneficiary as a "QA automation engineer" 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 California Service Center denied the petition, concluding that the record did not 
establish that the proffered position qualifies as a specialty occupation . 
On appeal, the Petitioner submits additional evidence 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 ml lcalifornia. At the time of filing, 
the Petitioner stated that the Beneficiary will be assigned to an end clientJ I at their office in 
I I California , for the duration of the requested period. The Petitioner described the proffered 
position as a "QA automation engineer" and stated that the Beneficiary would be responsible for 
developing an automation framework by optimizing and refactoring techniques for the most suitable and 
effective validation to provide the best software product and hardware environment; find errors and loop­
holes 30% by making sure the software is user-friendly, flawless, and efficient; create test plans and 
decide the scope for success and failure scenario and develop the automation framework 60% by looking 
into the interface landscape and architecture of the application making flexible for hardware and 
software; maintain new/existing automated test suites and infrastructure along the way to expand the test 
suites to cover the knowledge issue; and be responsible for writing the daily status report 10% of the 
development and validations which provide the status of the quality of the application by utilizing 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
excellent problem-solving technique creating robust automation of.......,.--r-________ _, across 
the platforms. 
The Petitioner initially identified the path of contractual succession for the Beneficiary's services as 
follows: 
[ 
Petitioner 
l 
(vendor) ( end-client) 
However in res onse to the Director's request for evidence (RFE), the Petitioner stated that the project 
with had been completed at that the Beneficiary will be assigned to a different end-client, 
, at their office in I I California, for the duration of the requested period. ~----~ 
The Petitioner described the new position as a "computer systems engineer" and stated that the 
Beneficiary would allocate 10% of her time to the project life cycle: requirement analysis, design, 
monitoring interface and test strategies, hardware performance; 40% of her time to the development of 
re-architecturing the existing system, integration testing, synchronization issues, complex issues, 
troubleshooting, and end to end automation flow of the application; 15% of her time to service 
integration and configuration, functionality clarification; 20% of her time to the development of test plan 
and testing of SQL based applications, analyze and resolve defects at module level; 5% of her time to 
define and track technical project, team work, track defects in UAT and production environments on a 
daily basis; 5% of her time to prepare process/design documents, data model, and requirement 
documents; and 5% of her time to coordination with team on daily basis to meet the functionality 
requirements. 
The Petitioner then identified a new path of contractual succession for the Beneficiary's services as 
follows: 
Petitioner (vendor) (end-client) 
On appeal, the Petitioner affirmed the Beneficiary's reassignment to the end-client! I 
located in I I California, and submitted a new Labor Condition Application (LCA) for the 
Beneficiary's newly proffered position at the newly assigned physical location. 2 
II. SPECIALTY OCCUPATION 
We have determined that the proffered position does not qualify as a specialty occupation. 
Specifically, by the Petitioner's own admission, the position initially proffered for the Beneficiary at 
2 We note that while both the initial location ot1 I California and the new location ofl lc:atifomia 
are in the same state, the Department of Labor has defined each location as an independent Metropolitan Statistical Area 
and assigned each different wages according to industry standards within their statistical areas. 
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the time of filing the instant petition no longer exists. 3 In response to the RFE, the Petitioner stated 
that the project for the end-client in the original proffered position was completed and it has assigned 
the Beneficiary to a new position on a new project with a new end-client at a new location. Therefore, 
we find 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-lB 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 Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). 
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): 
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 I-129 on behalf of an H-lB worker, a petitioner obtain 
3 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. 
3 
a certified LCA from DOL in the occupational specialty in which the H-1 B 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 that the Beneficiary would work off-site at 
an end-client's location in I !California. However, 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 inl ,I California for the duration of the H-lB employment period, 
i.e., October 1, 2018 to September 12, 2021. The certified LCA submitted with the Form 1-129 also 
indicates that the Beneficiary will work only at the I I California office from 
September 13, 2018 to September 12, 2021. On appeal, the Petitioner affirms its new assignment to 
the Beneficiary at the new end-client's location inl I California. 
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 I California, it also stated, in response 
to the RFE, that the Beneficiary's position has been reassigned to a new end-client inl I 
California. 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 
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model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
20 e.F.R. § 655.705(b) (emphasis added). 
As 20 e.F.R. § 655.705(b) requires that USeIS 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-lB 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-1 B 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 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 e.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 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 farther noted that to ascertain the intent of a petitioner, we must look to the Form 1-129 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-1 B petition has been adjudicated. 4 
4 The agency made clear long ago that speculative employment is not permitted in the H-lB program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B 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 
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. 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. 
a job search within the United States, or for employers to bring in tempora1y 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-IB 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-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. § 2 l 4.2(h)(2)(i)(E). 
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