dismissed H-1B Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 12211448 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 23, 2020 
The Petitioner, a medical clinic, seeks to employ the Beneficiary temporarily under the H-lB 
nonimmigrant classification for specialty occupations.1 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the Beneficiary was eligible for the exemption from 
the H-lB numerical limitation based upon a master's degree or higher from a U.S. institution of higher 
education2 for the fiscal year 2020 or that the proffered position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate el ig ibi I ity by a preponderance of the evidence. 3 
Upon de nova review,4 we will dismiss the appeal. 
I. ANALYSIS 
In this matter, the Director initially issued a request for evidence (RFE) requesting, in part, evidence 
that the University ofl I is a "nonprofit or public institution."5 In response, rather 
than address the issue, the Petitioner claimed that because of "an oversight by this office, the wrong 
credential . . . was provided." The Petitioner submitted amended pages 19-21 of the Form 1-129 I isting 
a master's degree froml I University, along with an unofficial transcript, which it claimed 
showed that "all coursework was completed and the degree earned in May 2019" and asserted that, 
as a result of the new basis for the exemption, the remainder of the Director's request regarding this 
issue was moot. 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(15)(H)(i)(b) . 
2 Section 214(g)(5)(C) of the Act. 
3 Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
4 We review the questions in this matter de nova. See Matter of Christa 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
5 20 U.S.C. § 1001 (a). 
As discussed by the Director in her denial, the Petitioner did not demonstrate that the University of 
I I is a public or other nonprofit institution and, as a result, did not meet the definition 
of an institution of higher education. Id. The Director also explained that the Petitioner did not 
establish that the Beneficiary had actually received the degree from I I University, and 
that even if it had, the degree, which the Petitioner claimed was awarded on May 2, 2019, would have 
been issued after the close of the fiscal year 2020 cap. She also discussed the deficiencies with the 
submitted transcript. The Director ultimately concluded that the Beneficiary was not eligible for the 
numerical exemption to the H-1B cap. Section 214(g)(5)(C) of the Act. 
Upon consideration of the entire record, including the evidence submitted and arguments made on 
appeal, we adopt and affirm the Director's determination with the comments below.6 
On appeal, the Petitioner again fails to address whether the University of ~-----~is a 
"public or other nonprofit institution," as defined at 20 U.S.C. § 1001 (a). Instead, tr Petitioner 
provides such evidence as the University's accreditation and a copy of the Beneficiary's I 
license. 
The regulations indicate that the Petitioner shall submit additional evidence as the Director, in his or 
her discretion, may deem necessary in the adjudication of the petition. See 8 C.F.R. §§ 103.2(b)(8), 
214.2(h)(9)(i). The purpose of the request for evidence is to elicit further information that clarifies 
whether eligibility for the benefit sought has been established, as of the time the petition is filed. 
See id. §§ 103.2(b)(1),(8),(12). "Failure to submit requested evidence which precludes a material line 
of inquiry shall be grounds for denying the [petition]." 8 C.F.R. § 103.2(b)(14). 
In addition, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has 
been given an opportunity to respond to that deficiency, we need not accept evidence offered for the 
first time on appeal. See Matter of Soriano, 19 l&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 l&N Dec. 533 (BIA 1988). If the Petitioner wanted the submitted evidence to be 
considered, it should have submitted the documents in response to the director's request for evidence. 
Id. 
Regarding the Beneficiary's degree from I I university, the Petitioner submits an official 
transcript dated May 5, 2020. The transcript, however, still does not establish when, or even if, the 
Beneficiary completed the degree. Of additional concern, the unofficial transcript's last entry was for 
the Fall 2019 term and indicated that the Beneficiary had earned 44 credits. The newly submitted 
official transcript includes the Spring 2020 term and indicates the Beneficiary had earned 56 credits. 
The official transcript raises questions as to whether the Petitioner's previous claims regarding the 
unofficial transcript were true. The Petitioner must resolve this discrepancy in the record with 
6 See Matter of P. Singh, Attorney, 26 l&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 
1994)); see also Chen v. I NS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[l]f a reviewing tribunal decides that the facts and evaluative 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized 
attention to the case). 
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independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-
92 (BIA 1988). 
Regardless, as previously noted, the purpose of the RFE is to elicit further information that clarifies 
whether eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). If significant 
changes are made to the initial request for approval, the Petitioner must file a new petition rather than 
seek approval of a petition that is not supported by the facts in the record. The information provided 
by the Petitioner in its response to the Director's RFE did not clarify or provide more specificity 
regarding whether the University ofl I is a public or other nonprofit institution, but 
rather attempted to change the degree on which the exemption was based. In addition, a petitioner 
must establish eligibility at the time it files the nonimmigrant visa petition.7 USCIS may not approve a 
visa petition at a future date after a petitioner or a beneficiary becomes eligible under a new set of 
facts.8 Therefore, a petitioner may not make material changes to a petition that has already been filed in 
an effort to make an apparently deficient petition conform to USCIS requirements.9 
For all these reasons, the Petitioner has not established that the Beneficiary was eligible at the time of 
filing for the numerical exemption as provided for in section 214(g)(5)(C) of the Act. As a result, we 
need not address the remaining issue regarding whether the proffered position qualifies as a specialty 
occupation. 
We would also note one additional issue in the record. According to the Petitioner, to perform the 
duties of the position, an individual must have either a: 
I Master's deree in management or health administration and work experience in an 
I clinic 
Or 
I Master's degree in traditional I I medicine and related experience 
managing/supervising people, operations, etc. 
In addition, the individual "[m]ust possess knowledge of ~I -~I medicine and I 
techniques" and must speak and write Mandarin. .__ ___ _. 
The labor condition application (LCA) serves as the critical mechanism for enforcing section 212(n)(1) 
of the Act, 8 U.S.C. § 1182(n)(1).10 According to section 212(n)(l)(A) of the Act, an employer must 
attest that it will pay a holder of an H-lB visa the higher of the prevailing wage in the "area of 
7 8 C.F.R. § 103.2(b){l), (12). 
8 Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 1978) (finding that nonimmigrant eligibility criteria 
must be met at the time a petitioner files the petition). 
9 See Matter of lzummi, 22 l&N Dec. 169, 175 {Assoc. Comm'r 1998). 
10 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
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employment" or the amount paid to other employees with similar experience and qualifications who 
are performing the same services. See 20 C.F.R. § 655.731(a); Venkatraman v. REI Sys., Inc., 417 
F.3d 418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal 
Vojtisek-Lom & Adm'r Wage & Hour Div. v. Clean Air Tech. lnt'I, Inc., No. 07-97, 2009 WL 2371236, 
at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
Here, at a minimum, the Petitioner has not established that its foreign language requirement is reflected 
in the Level I wage for the proffered position.11 
While the Department of Labor (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. See 20 C.F.R. 
§ 655.705(b), which states, in pertinent part (emphasis added): 
For H-1B 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 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1B visa classification. 
Because the prevailing wage does not accurately reflect the actual requirements of the proffered 
position, the Petitioner has not established that "the petition is supported by an LCA which corresponds 
with the petition." Id. 
ORDER: The appeal is dismissed. 
11 A language requirement other than English in a job offer generally is considered a special skill. DOL, Emp't & Training 
Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available 
at http://www.foreignlaborcert.doleta.gov/pdf /NPWHC_Guidance_Revised_11_2009.pdf. 
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