dismissed H-1B Case: Laboratory Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-L-L-,P-S-S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 8, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a contract test laboratory, seeks to temporarily employ the Beneficiary as a "post 
doc- senior scientist" under the H-1B 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-1B 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 that it will have an employer-employee relationship with the Beneficiary. 
On appeal, the Petitioner asserts that the evidence of record establishes eligibility for the benefit 
sought. · 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
Before we discuss the identified basis for denial, which is dispositive of the Petitioner's appeal, we 
will discuss another ground of ineligibility we observe in the record of proceedings. 1 Upon review 
of the record in its totality and for the reasons set out below, we determine that the Petitioner has not 
demonstrated that the proffered position qualifies as a specialty occupation.2 That is, the Petitioner 
1 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 20 10). In other words, a petitioner must show that 
what it claims is "more likely than not" or "probably" true. To determine whether a petitioner has met its burden under 
the preponderance standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. !d. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
2 The Petitioner submitted documentation to support the H-1 8 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. 
Matter of E-L-L-,P-S-S-, LLC 
has not established that, at the time of filing, it has secured definite, non-speculative specialty 
occupation work for the Beneficiary for the entire validity period requested.3 
A. Legal Framework 
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 proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
(1) A baccalaureate or higher degree or its equivalent is normally 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 
3 Speculative employment is not permitted in the H-1 B 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 a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising tfom 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) 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). 
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Matter of E-L-L-,P-S-S-, LLC 
( 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto.ff, 484 F.3d 139, 147(lst Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Def ensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
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. 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 
qualifies 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. 
B. Analysis 
The Petitioner has not sufficiently demonstrated that it had secured non-speculative specialty 
occupation work for the Beneficiary. 
The Petitioner, which is located in Pennsylvania, asserts that it will assign the Beneficiary to work 
for (the end-client) in Virginia. In support, the Petitioner submitted a copy of a Master 
Services Agreement (MSA) with the end-client, executed on July 1, 2011. According to section 1, 
entitled "Term and Termination," the termination date ofthe agreement is June 30, 2016. This 
section further specifies that there are no renewals of the agreement, and states that the term of the 
agreement cannot exceed five years. 
In the H -1 B petition, the Petitioner requested approval for the Beneficiary for the period from 
October 1, 2016 to August 31 , 2019. Given that its MSA with the end-client terminated three 
months prior to the Beneficiary's requested start date, the record as constituted at the time of filing 
did not establish that the Petitioner had secured specialty occupation work for the Beneficiary for the 
duration of the requested validity period. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter from its 
senior recruiter, who stated that a new contract between the Petitioner and the end-client "will soon 
be finalized," noting that it anticipated an extension of that agreement for an additional three years. 
Despite this assertion, the Petitioner did not submit a written agreement between the Petitioner and 
the end-client, or any other organization, establishing that H-1 B caliber work exists for the 
Beneficiary for the duration of the requested period. 
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Matter, of E-L-L-,P-S-S-, LLC 
On appeal, the Petitioner submitted a new MSA between the Petitioner and the end-client, effective 
·as of September 1, 2016. However, this agreement post-dates the filing of the petition, which was 
received by U.S. Citizenship and Immigration Services (USCIS) in April of2016 , and thus cannot be 
deemed evidence ofH-lB caliber work available to the Beneficiary at the time of filing. 
However, even if we assume that the new MSA was timely executed and valid, we note that the 
MSA does not name the Beneficiary, and there is no other document from the end-client that 
substantiates the Beneficiary's placement there. Further, the MSA also indicates that "[the 
Petitioner] must provide qualified Senior Scientist Postdoc and Scientist Postgraduate personnel on a 
temporary basis4 in accordance with Service Requests .. : ." However, the record does not contain a 
service request that defines the terms and condition of that service request. 
Specifically, Section 2 of the MSA outlines the manner in which the Petitioner will render services 
to the end-client. Section 2.1 indicates that a "Project Agreement" will be executed between the 
parties, after which the Petitioner will be obligated to provide the services specified therein. 
According to Section 2.1, the Project Agreement, at a minimum, will include the name of the project 
leader, a description of the services to be provided, the anticipated duration of the services, the skill 
set and experience, required of the personnel performing the services, and their position titles and 
biweekly rates of compensation. As noted above, the record contains no evidence that any project 
agreement or other request for services has been executed. 
Rather than establish definitive, non-speculative employment for the Beneficiary for the entire period 
requested, the Petitioner simply claimed that the Beneficiary would have numerous assignments 
available to him based on the stability of its relationships with its clients. Specifically, the Petitioner 
stated in its letter of support that "although [the Beneficiary's] initial assignment will be at a client 
site in Virginia, future assignments could include working at the company's own 
laboratory or at an additional client site." The Petitioner further claimed in response to the RFE that 
"if that contract were to end, there would be additional assignments . available." However, the 
Petitioner did not submit probative evidence substantiating additional projects or specific work for 
the Beneficiary. 
We find, therefore, that the Petitioner has not established that the petition was filed for non-speculative 
work for the Beneficiary, for the entire period requested, 
that existed as of the time of the petition's 
filing. USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. 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 (Reg'l , 
Comm'r 1978). 
4 We further note that Exhibit A of the new MSA indicates that the "services provided by Senior Scientist Postdoc and 
Scientist Postgraduate personnel may not exceed two years unless approved by [the end-client] in writing." This 
statement raises further questions with regard to the availability of specialty occupation work for the Beneficiary for the 
requested 35-month validity period , 
4 
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Matter of E-L-L- ,P-S-S- , LLC 
Moreover, while the Petitioner provided a description of the proffered job duties, there is insufficient 
evidence directly from the end-client corroborating that description. Specifically, in its letter of 
support filed with the petition, the Petitioner described the duties of the position as follows: 
The position offered is referred to internally as a Senior Scientist and it involves 
exploring molecular genetic and biochemical bases for plant trait development. More 
specifically, the job involves working at a client site [end-client] under the direction, 
control and supervision of [the Petitioner's] managers, exploring the molecular 
genetics and regulatory changes in - _ _ - , and developing input and 
output traits. The Senior Scientist is responsible for initiating and conducting 
research experiments, applying gene cloning, gene expression and transformation 
techniques, and applying bioinformatics and molecular genetic computation 
techniques to meet proper goals. 
(, 
However, as discussed above, the record does not contain an executed project agreement that 
describes the services to be performed by the Beneficiary for the end-client. Although Exhibit A of 
the MSA includes a list of services the Petitioner is expected to provide, the list is generic and 
merely identifies the "areas," such as in which the expected services are to be rendered. There is no 
specific statement identifying the project on which the Beneficiary will work, the services required 
for the project, and the skill set and experience level required to perform such services. As noted 
above, where the work is to be performed for entities other than the Petitioner, evidence of the client 
companies' job requirements is critical. See Defensor, 201 F.3d at 387-88. The record of 
proceedings does not contain sufficient information from the end-client regarding the project that the 
Beneficiary would work on. Therefore, we cannot determine the substantive nature of the work to 
be performed by the Beneficiary. 
Accordingly, we find the record insufficient to demonstrate 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 entry into the particular position, 
which is the focus of criterion 1; (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 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. 
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 for classification as a 
specialty occupation. 
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Matter of E-L-L-,P-S-S-, LLC 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined at 8 C.F.R. § 214.2(h)(4)(ii) as follows: 
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. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H-1B visa 
classification. The United States Supreme Court has determined that where federal law fails to clearly 
define the term "employee," courts should conclude that the term was "intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." Nationwide 
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. 
Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
6 
Matter of E-L-L-,P-S-S-, LLC 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is. part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
Id; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)).5 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1 B nonimmigrant petitions, we will 
look to common-law agency doctrine and focus on the common-law touchstone of "control." 
Clackamas, 538 U.S. at 450; see also 8 C.P.R.§ 214.2(h)(4)(ii) (defining a "United States employer" as 
one who "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 .... "(emphasis added)). 
Such indicia of control include when, where, and how a worker performs the job; the continuity of the 
worker's relationship with the employer; the tax treatment of the worker; the provision of employee 
benefits; and whether the work performed by the worker is part of the employer's regular business. See 
5 
While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U .S.C. § 1 002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common Jaw definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
10 I (a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(J )(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of the H-1 B visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. Specifically, the !regulatory definition of "United States employer" requires H-1 B 
employers to have a tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H~ I B "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
The lack of an express expansion of the definition regarding the terms "employee" or "employer-employee relationship" 
combined with the agency's otherwise generally circular definition of United States employer in 8 C.F.R. 
§ 214.2(h)(4)(ii) indicates that the regulations do not intend to extend the definition beyond "the traditional common law 
definition" or, more importantly, that construing these terms in this manner would thwart congressional design or lead to 
absurd results. Cf Darden, 503 U.S. at 318-19. A federal agency's interpretation of a statute whose administration is 
entrusted to it is to be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural 
Res. Def Council, Inc., 467 U.S. 837,844-45 (1984). 
7 
Matter of E-L-L-,P-S-S-, LLC 
Clackamas, 538 U.S. at 445; see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially 
identical test and indicating that said test was based on the Darden decision); Defensor v. Meissner, 201 
F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the recipients ofbeneficiaries' services, are 
the "true employers'' ofH-lB nurses under 8 C.F.R. § 214.2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, fire, supervise, or otherwise control 
the work of the beneficiaries). 
The factors listed in Darden and Clackamas are not exhaustive and must be evaluated on a case-by­
case basis. Other aspects of the relationship between the parties relevant to control may affect the 
determination of whether an employer-employee relationship exists. Not all or even a majority of 
the listed criteria need be met; however, the fact finder must weigh and compare a combination of 
the factors in analyzing the facts of each individual case. The determination must be based on all of 
the circumstances in the relationship between the parties, regardless of whether the parties refer to it 
as an employee or an independent contractor relationship. See Clackamas, 538 U.S. at 448-49; 
EEOC Compl. Man. at§ 2,.III(A)(l). 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
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 prQviding his services. Given this specific lack of evidence, the Petitioner has 
not corroborated who would 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 
that it would 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 would have and maintain an employer-employee relationship with respect to the sponsored 
H-lB nonimmigrant worker). 
The Petitioner maintains that it is the Beneficiary's employer because it provides wages and benefits. 
While payroll and other employment benefits are relevant factors in determining who will control 
the Beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the 
Beneficiary, where the work is located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Without full disclosure of all of the 
relevant factors, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
8 
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Matter of E-L-L- ,P-S-S-, LLC 
Nevertheless, based on what evidence was provided with regard to who will control the Beneficiary 
during the requested employment period, it must be noted that the record indicates that the 
Beneficiary will be physically located at the end-client's office in , Virginia. 
We note that the Petitioner's offer of employment letter to the Beneficiary identifies as the 
Beneficiary's manager, and as the Beneficiary's director. However, the Petitioner 
has not supplemented the record with additional, relevant information about or _ 
employment, such as where they physically work. While we note the Petitioner's assertion 
that both and are its managerial employees, there is no evidence that either of 
these individuals would manage the Beneficiary's day-to-day work. While we note the Petitioner 's 
assertions that is a scientist-manager for the Petitioner, and that the Beneficiary "takes 
instruction and direction" and "communicates regularly" with there is no 
documentation to establish that is employed onsite at the end-client's location in 
Virginia and would supervise the Beneficiary's daily activities. 
Aside from the Petitioner's uncorroborated claims, there is no evidence to support this statement. 
For example, there is no executed project agreement in the record that identifies the end-client 
project referred to by the Petitioner in its various letters. As noted previously, the new MSA 
submitted on appeal indicates that, at a minimum, a project agreement should be executed, and the 
agreement should include a description and the estimated duration of the project, and should identify 
the personnel assigned to tJ:te project as well as the project leader. Again, the record is devoid of a 
project agreement outlining the project upon which the Beneficiary will work at the Virginia 
location. This omission is significant, because the project agreement is intended to identify the 
specifics of the project, and in particular, the name of the project leader.6 There is no documentation 
in the record identifying or as the intended onsite supervisor of the Beneficiary. 
Upon complete review o'f the record of proceedings, we find that the evidence in this matter is 
insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 
8 C.F .R. § 214.2(h)( 4 )(ii). The evidence of record does not establish that the Petitioner would act as 
the Beneficiary's employer. Based on the tests outlined above, the Petitioner has not established that 
it will be a "United States employer" having an "employer-employee relationship" wit~ the 
Beneficiary as an H-lB temporary "employee ." 8 C.F.R. § 214.2(h)(4)(ii). 
III. LABOR CONDITION APPLICATION 
We also find that the Petitioner did not submit a labor condition application (LCA) certified for all 
work locations of the Beneficiary. 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: 
6 In response to the RFE, the Petitioner references Sections 6.1 and 6.2 of the MSA submitted in support of the petition 
which provides that the Petitioner 's "Team Leader" shall be the on-site Group Leader responsible for the management of 
all personnel. This assertion is not persuasive , as this agreement terminated three months prior to the Beneficiary 's start 
date, thereby rendering its claims regarding onsite supervision irrelevant here. 
9 
Matter of E-L-L-,P-S-S-, LLC 
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.P.R. 
§ 103.2(b)(1): 
I 
I 
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, Petition for a Nonimmigrant Worker, on 
behalf of an H-1B worker, a petitioner obtain a certified LCA from the Department of Labor (DOL) 
in the occupational specialty in which the H-1B worker will be employed. See 8 C.P.R. 
§ 214.2(h)(4)(i)(B). The instructions that accompany the Form I-129 also specify that an H-1B 
petitioner must submit evidence that an LCA has been certified by the DOL when submitting the 
Form I-129. 
Additionally, the regulation at 8 C.P.R.§ 214.2(h)(2)(i)(B) provides as follows: 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed with 
USCIS as provided in the form instructions. The address that the petitioner specifies 
as its location on the Form I-129 shall be where the petitioner is located for purposes 
of this paragraph. 
As noted above, the Petitioner indicated on the Form I-129 that the Beneficiary would be working 
only at the end-client's offices in Virginia for the duration of the H-1B employment period. The 
certified LCA submitted with the Form I-129 also indicates that the Beneficiary will work only at 
this Virginia location. However, the Petitioner claims throughout the record that the Beneficiary 
may be assigned to any number of projects, either in-house at the Petitioner's offices or onsite at 
client locations. 
While the DOL is the agency that certifies LCA applications before they are submitted to USCIS, 
20 C.P.R. § 655.705(b) requires that USCIS ensure that an H-1B petition is filed with a 
"DOL-certified LCA attached" that actually supports and corresponds with the petition on the 
petition's filing. Therefore, we find that a necessary condition for approval of an H-1B visa petition 
is an LCA, 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. Furthermore, 
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Matter of E-L-L-,P-S-S-, LLC 
the petition must list the locations where the beneficiary would be employed and be accompanied by 
an itinerary with the dates the beneficiary will provide services at each location. Both conditions 
were not satisfied in this proceeding. Again, a petitioner must establish eligibility at the time of 
filing a nonimmigrant visa petition. 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 
Michelin Tire Corp., 17 I&N Dec. 248. 
IV. CONCLUSION 
The Petitioner did not establish that it will have an employer-employee relationship with the 
Beneficiary. Further, the Petitioner did not establish that specialty occupation work is available for 
the Beneficiary, and did not provide a certified LCA that corresponds to the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-L-L-,P-S-8-, LLC, ID# 318375 (AAO June 8, 2017) 
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