dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 7815419 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 2, 2020 
The Petitioner, an information technology business support company, seeks to temporarily employ the 
Beneficiary as a "senior node JS developer" under the H-lB nonirnmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b), 8 U.S.C. 
§ l 10l(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 Petitioner did not 
establish eligibility for the requested benefit and made material changes after filing the petition. On 
appeal, the Petitioner submits additional evidence and asserts that the Director erred. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
The record does not sufficiently establish the terms and conditions of employment at the time of filing. 
The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.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 l&N Dec. 248, 249 (Reg'l Comm 'r 1978). 
At the time of filing, the Petitioner indicated that the Beneficiary would not work off-site and provided 
its address inl I Maryland, as the location of employment both on the petition and the labor 
condition application (LCA). 1 With its initial filing, the Petitioner did not submit a letter in support 
of the petition explaining the nature of the Beneficiary's employment. However, the Petitioner 
submitted a copy of the employment offer letter for the Beneficiary. According to the letter, the 
Beneficiary would support the Petitioner's client,'! I," 
1 The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer 
to other employees with similar experience and qualifications who are performing the same services . See Matter of Simeio 
Solutions , LLC, 26 I&N Dec. 542, 545-546 (AAO 2015) . 
as a "senior node.JS developer" at the Petitioner's place of business. The letter also noted that during 
his employment, the Beneficiary "will be expected to work at the client's location and may also be 
required to travel to other client sites" suggesting that the Beneficiary would also be working at 
locations other than the Petitioner's place of business. However, the Petitioner did not provide the 
client's address or information about other work locations. Further, the Petitioner did not submit any 
contracts to support its contractual relationship with the client and did not indicate whether a vendor 
was involved in the contractual relationship. Therefore, initially, the record contained inconsistent 
and insufficient information regarding the nature of the Beneficiary's employment. 
In response to the Director's request for evidence (RFE), the Petitioner provided additional evidence 
including a subcontract agreement withl O I (the vendor) and stated that the 
"Offer Letter extended to [ the Beneficiary] ... in conjunction with the place of performance language 
in the Subcontract" evidenced that "from the inception of [the Beneficiary's] employment" that the 
Beneficiary was to perform his duties at the vendor's place of business inl I Maryland. While 
we note that both the Petitioner's location and the vendor's place of business are in the same 
metropolitan statistical area, we also note that the Petitioner failed to explain the reason for not 
including the vendor's address on the petition and the LCA as the place of employment in light of its 
claim that "from the inception" of the Beneficiary's employment, the Beneficiary was going to work 
at the vendor's place of business. Moreover, the Petitioner did not submit an agreement between the 
vendor and the end-client. Therefore, we do not have sufficient information to determine the terms 
and conditions of the Beneficiary's employment at the time of filing. The Petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the 
benefit through adjudication. 8 C.F.R. § 103.2(b)(l). While we note that the Petitioner did not submit 
sufficient information regarding the proffered position at the time of filing, evidence submitted in 
response to the RFE indicated that there has been a change in the location of the position and 
introduced a vendor. 
In addition, the record does not sufficiently establish that the position meets the requirements of a 
specialty occupation. 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). The record contains inconsistent and 
insufficient information regarding the proffered position. For example, the duties provided with the 
initial filing of the petition are not described within the context of the client's project, "the new identity 
management system." Moreover, in response to the RFE, the Petitioner submitted duties different 
than the ones it submitted with the initial filing of the petition. The Petitioner also referenced a 
document from the vendor that included a brief description of the duties for the "Senior Report 
Developer" 2 and stated that the position requires a "Bachelor's degree and 10 years experience .... " 
However, the vendor did not indicate a specific specialty for the degree and did not elaborate on 
whether the experience must be equivalent to a bachelor's degree or higher in a specific specialty. 
Furthermore, the record is silent on the requirements imposed by the end-client. 
ORDER: The appeal is dismissed. 
2 This document appears to be a job announcement document and also includes infcnmation for the "EVMS 
Specialist/Scheduler/Project Finance Lead" position. 
2