dismissed H-1B Case: Mechanical Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., b. A3042 
Washineton, DC 20529 
US. Citizenship 
and Immigration 
Services 
r n\ %""u~, 
FILE: LIN 04 075 52730 Office: NEBRASKA SEWICE CENTER Date: ?Lw ;, c, L' ,-4 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LlN 04 075 52730 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Ofice (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 HI." The petitioner endeavors to classifgi the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to 5 1 OB(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(lS)(H)(i)(b). 
The director denied the petition because the petitioner does not qualify as a U.S. employer, and the petitioner 
has not demonstrated that it has sufficient H-1B level work for the beneficiary. On appeal, counsel submits a 
brief and additional evidence, including the following: letters from the petitioner's vice president of U.S. 
operations and from the presidentIC010 of the petitioner's client, 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)(D of the Act, 8 U.S.C. 5 1184(i)(l), defines the tern "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, md 
(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 foliowing criteria: 
(I) 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; 
%IN 04 075 52730 
Page 3 
(3) The employer nomaally 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 usualljr associated with the attainment of a baccalaureate or higher 
degree. 
The record of proceeding before the AAO contains: (I) Form 1-129 md supporting documean"sation; 423 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 1-290B and supporting docurnentation. The AAO 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 Petter in support of the 
petition; and the petitioner's response to the director's request for evidence. 
The director fomd that the petitioner's lease agreement for an area of 168 square feet at 4567 Glenmead, 
Auburn Hills, Michigan, was not large enough to conduct business or support two employees. The director 
found further that the petitioner's 2803 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 enaployee. 
On appeal, counsel states, in part, that the petitioner is a legitimate entity conducting business in Aubm - - 
Hills, Michigan, with sufficient H-EB level work for the beneficiary at its client site, 
in Auburn fills, Michigan. Counsel states fiather 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 dbector, namely 
that the petitioner has not demonstrated that it is a United States employer witbin the meaning of the 
regulations and that it will employ the beneficiary in a specialty occupation. Hn a Petter dated May 4, 2004, the 
petitioner's vice president of U.S. operations states, in part, that its lease of 468 square feet at 4567 
Glenmead, Aubm Ells, Michigan, is "only to have the adninistrative office to conduct our administrative 
operations." It is not clear, however, what employees make up the petitioner's administrative office, as 
information on the petition and on the petitioner's most recent quarterly federal tax return for the period 
ending March 34, 2004, reflects that the petitioner has only one employee. It is faher noted that the 
petitioner's Fom 941 quarterly tax return for the quarter ending on March 31, 2004, does not reflect the 
petitioner's address at 4567 Glenmead, Auburn Hills, Michigan, though the lease for this address was entered 
into on January 1, 2004. Counsel additionally states on appeal: 'The organizational chart clearly indicates that 
a Systems Analyst, and Mechanical Engineer is [sic] employed in the U.S. by the petitioner. h addition, the 
Petitioner is utilizing the services of a Control Engineer on a [sic] independent contractor basis." Counsel 
LIP4 04 075 52730 
Page 4 
submits copies of two paychecks and notes that one of the employees was hired on April 12,2004. Counsel's 
statement and evidence are noted. The petitioner, however, must establish eligibility at the time of filing the 
grant visa petition. h this case, the petition was filed on January 22, 2004, and the petition and 
supporting documentation reflected only one employee. A visa pef tion may not be approved at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire COT., 17 
I&N Dec. 248 (Reg. Corn. 19783, Furthermore, although some documentatatam In the record, including 
infomation on the petition, reflects the petitioner's address as 2653 Davison Ave., Auburn Hills, Michigan, 
other documentation in the record, including the petitioner's 2002 federal income return, reflects the 
petitioner's address as 2642 Davinson Avenue, Auburn Hills, Michigan, and the petitioner's Fom 941 
quaflerly tax retm for the quarter ending on September 30, 2003, reflects the petitioner's address as 2642 
Davision Ave., Auburn Hills, Michigan. As such, the exact nature and location of the petitioning entity are 
unclear. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter o~HQ, 19 I&N Dec. 
582, 591-92 (BM 1988). Doubt cast on any aspect of the petitioner's proof my, of course, Bead to a 
reevaluation of the reliability and sufficiency of the remaining evidence of'ered in support of the visa petition. 
Matter ofHo, 19 I&N Dec. 582, 591 (BM 1988). In view of these unresolved inconsistencies, the petitioner 
has not overcome the objections of the director. 
Beyond the decision of the diaector, the petitioner has not established that the nature of the work in which the 
beneficiary will be employed is a specialty occupation. I[n Defensor v. Meissner, 201 F. 3d 384 (5Ch Car. 2008), 
the court held that the gration and Naturalization Service, now CIS, reasonably interpreted the statute 
and the regulations when it required the petitioner to show that the entities ultimately employing the alien 
beneficiaries require a bachelor's degree for all employees in that position. The court found that the degree 
requirement shouid not originate with the eqloyment agency that brought the alien beneficiaries to the 
United States for employment with the agency's clients. 
In. this case the petitioner contends that the beneficiary will work off site at its 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 occupation. For this additional reason, the petition may not be 
approved. 
As related in the discussion 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 petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
OmER: The appeal is dismissed. The petition is denied.