dismissed H-1B Case: Information Technology

U.S. Department of Homeland Security 
20 Mass. Ave.. N.RT., Rm. 43042 
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Washington? DC 20529 
W. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 075 52730 Office: NEBRASKA SERVICE CENTER Date: ' '"' L,*Lj -\ - ' 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(H)(i)(b) 
ON BEIIALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative ~~~e'als Officc in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must bc made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LIN 04 075 52730 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative AppeaIs Officc (AAO) on appeal. The appeal will be dismissed. The petition will be denied. 
The petitioner is an information technology business that seeks to employ the beneficiary as a "mechanical 
engineering technician 11." The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to $ I01 (a)(l5)(H)(i )(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 101(a)(l5)(H)(i)(b). 
The director denied the petition because the petitioner docs not qualify as a U.S. employer, and the petitioner 
has not demonstrated that it has sufficient H-IB level work for the bencficiary. On appeal, counsel submits a 
brief and additional cvidence, including the following: letters from the petitioner's vicc president of U.S. 
operations and from the president/C010 of the petitioner's ciient, Tesco Engineering; a copy of the 
petitioner's financial statement for the year ending December 3 1, 2003; copies of the petitioner's quarterly tax 
returns for 2003 and the first quarter of 2004; and copies of the most recent pay stubs for the petitioner's two 
employees. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(ii): 
United States employer means a person, firm, corporation, contractor, or other association, or 
organization in the United States which: 
( 1 ) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this part, as 
indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of 
any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "speciaity 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. 
Pursuant to 8 C.F.R. 5 214,2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimurn requirement 
for entry into the particular positiot~; 
(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; 
LIN 04 075 52730 
Page 3 
(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. 
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the 
director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) Form I-290B and supporting documentation. The AAY reviewed the record in 
its entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a "mechanical engineering technician 11." Evidence of 
the beneficiary's duties includes: the 1-129 petition; the petitioner's January 16, 2004 letter in support of the 
petition; and the petitioner's response to the director's request for evidence. 
The director found that the petitioner's lease agreement for an area OF- 
- 
was not large enough to conduct business or support two employees. The director 
urther that the petitioner's 2003 tax report was not submitted, and its 2002 tax report reflected a net 
loss. The director also found that an email was not sufficient evidence of a contract agreement or that the 
petitioner had sufficient H-llevel work to support another employee. 
On appeal, counsel states, in part, that the petitioner is a legitimate entity conductink business in Auburn - 
li~lls,~~ichi~an, with sufficien; H-1B level work for the beneficiary at its ciient site,-1 
in Auburn Hills, Michigan. Counsel states further that the letter submitted by the petitioner's vice president of 
U.S. operations explains that the petitioner's office at ~uburn Hills. Michigan. is utilized for 
administrative purposes only and that the engineers work primarily on site. Counsel also states that the 
petitioner's financial statement for the year ending December 31, 2003, reflects total revenues in the amount 
of $108,596.00 and a net profit in the amount of $4,903.00. which demonstrates the petitioner's ability to pay 
the proffered wages. Counsel additionally states that the petitioner's organizational chart indicates that it 
employs a systems analyst and a mechanical engineer, as well as a control engineer on an independent 
contractor basis. 
Due to inconsistencies in the record, the petitioner has not overcome the objections of the director, namely 
that the petitioner has nor demonstrated that it is a'/United States employer within the meaning of the 
regulations and that it will employ the beneficiary in, ii specialty occupation. In a letter dated May 6,2004. the 
t of U.S. operations stater, in part, that its leasc of 168 square feet at- 
Michigan, is "only to have the administrative office to conduct our administrative 
operations." It is not clear, however, what employees make up the petitioner's administrative office, as 
7 - 
information on the petition and on the petitioner's most recent quarterly federal tax return for the period 
ending March 31, 2004, reflects that the petitioner has only one employee. It is further noted that the 
petitioner's Form 9 ~arter ending on Marc11 31, 2004. does not reflcct ihe 
pe!it!oner's address Michigan. though the lease for this address was zlitcrc'd 
!nto on January 1, 30 n appeal: "l'hc organizational chart clear!)r incicrltcs that 
a Systems Analyst, and Mechanical Engineer is [sic] employed in the U.S. by the-petitioner. in addition, the 
Petitioner is utilizing the services of a Control Engineer on a [sic] independent contractor basis." Counsel 
LPN 04 075 52730 
Page 4 
submits copies of two paychecks and notes that onc of the employees was hired on April 12.2004. Counsel's 
statement and evidence are noted. The petitilqer, however, must establish eligibility at the time of filing the 
nonimrnigrant visa petition. In this case, the petition was filed on January 22, 2004, and the petition and 
supporting documentation reflected only one employee. A visa petition may not be approved at a future date 
after the petitioner or beneficiary becomes eligible under anew set of facts. Matter of Michelin Tire &bly., 17 
I&N Dec. 248 (Reg. 
information on the pet 
other documentation a1 income return, reflects the 
petitioner's address as 
objective evidence. Any attempt :o explain or rkconcile such inconsistencies wiil not suffice unless ?he 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of P-lo, 19 I&M Dec. 
582, 591-92 (BXA 1988). Doubt cast on any aspect of the pctitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offercd in support of the visa petition. 
Matter of Ha, 19 I&N Dec. 582, 591 (BM 1988). In view of these unresolved inconsistencies, the petitioner 
has aot overcome the objections of the direc"tor. 
Beyond the decision of the director, the petitioner has not established that the nature af the work in which the 
beneficiary will be employed is a specialty occupation. In DiZfensor v. Meissner, 201 IF. 3d 384 (5Lh Cir. 2000), 
the court held that the Immigration and Naturalization ~ervice, now CIS, reasonably interpreted the statute 
and the reguiations when it required the pctitioner'to show that the entities ultimately employing the alien 
beneficiaries require a bachelor's degee for all employees in that position. The court found that the degree 
rcquirernent should not originate with the employment agency that brought the alien beneficiaries to the 
United States for employment with the agency's clientS. 
,/ 
ln this case the petitioner contends that the beneficiary will work off site at,i:s client location, but provides no 
comprehensive job description of the beneficiary's duties from an authorized representative of the client. 
Without such a description, the petitioner has not demonstrated that the work that the beneficiary will perform 
at the client site will qualify as a specialty occupa'tion. For this additional reason, the pctition may not be 
approved. 
As related in the discirssion above, the petitioner has failed to establish that it qualifies as a U.S. employer. or 
that it will employ the beneficiary in a specialty occupation. Accordingly. the AAO shall not disturb the 
director's denial of the petition. 
The burden of proof in these proceedings rests solely with the pctitioner. Section 291 of the Act. 8 1J.S.C. d 136 2. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The pctition is denied.