dismissed H-1B Case: Molecular Biology

U.S. Citizenship 
and Immigration 
Services 
InRe : 5176173 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 12, 2020 
The Petitioner , a research and development firm, seeks to temporarily employ the Beneficiary as a 
"molecular biologist" 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 Director of the California Service Center initially approved the Form I-129 , Petition for a 
Nonimmigrant Worker , then issued a notice of intent to revoke (NOIR) the approval. Subsequently , 
the Director revoked the petition 's approval on the merits after determining that the Petitioner failed 
to respond to the NOIR. On appeal , the Petitioner claims that it responded to the NOIR, but the 
Director did not acknowledge their evidence or claims with that response. The Petitioner's appeal 
brief includes documentation to support its contention that it responded to the revocation notice , and 
provides the documentation it claims to have submitted. Upon de nova review, we will dismiss the 
appeal. 
It is important to note that this Petitioner filed two separate H-lB petitions on the Beneficiary's behalf. 
The Director issued separate NOIRs on each petition. The petition we have before us on appeal is the 
second petition. We have no indication that the Petitioner appealed the revocation of its first petition. 
Within the appeal , the Petitioner takes issue with the Director 's determination that it failed to respond 
to the second petition 's NOIR. In support of this contention the Petitioner provided a tracking printout 
from an overnight delivery service. Reviewing the record of proceedings for the second petition does 
not reveal that the Petitioner submitted a response to the NOIR. However , the first petition does 
contain a response to that petition 's revocation notice. Within that response the Petitioner provided 
the first petition's NOIR that also contains the same tracking number for the overnight delivery service 
that the Petitioner claims is associated with the second petition 's NOIR response . As a result , it 
appears that the Petitioner mistakenly provided a response to the NOIR relating to the first petition but 
failed to offer a separate set of documentation specifically associated with , and responding to, the 
NOIR for the second petition that we have on appeal. We therefore must dismiss this appeal. 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5) (H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H) (i)(b). 
Nevertheless, we will address the Petitioner's remaining claims on appeal. During a post-adjudication 
site visit, an Immigration Officer was unable to locate the Petitioner's signatory or the Beneficiary at 
the worksite listed on the petition. On appeal, the Petitioner indicates that she was returning from an 
overseas trip at the time of the visit, and the Beneficiary was performing peripatetic work at a 
laboratory. Based on the documentation the Petitioner provides to corroborate these claims, this 
sufficiently addresses the Director's concerns relating to the presence of the relative parties or the 
facilities necessary to perform the Beneficiary's work. 
However, we observe other possible issues within this filing. The Petitioner has not demonstrated that 
it provided a sufficient work environment for the Beneficiary to perform the duties it included in the 
petition. Specifically, the Petitioner filed this amended petition in November 2016 for work scheduled 
to begin that same month. We note that within the previous H-1 B petition the Petitioner filed for this 
same Beneficiary to perform the same type of duties, it indicated the work would begin in October 
2016, after the Beneficiary completed consular processing to obtain her H-lB visa and status. 
Continuing the discussion about the laboratory needed to perform the proffered position's duties, the 
Petitioner claims with the appeal brief that in its response to the Director's request for evidence (RFE), 
it "showed [the Petitioner] was on the waiting list for leasing a lab space provided by an incubator 
compan~ I. ... After the beneficiary's working visa was granted, there was no 
space immediately available from that incubator." The Petitioner then indicated that it subsequently 
located a laboratory space and signed a contract withl , I in its response to the Director's 
RFE. 
First, the Petitioner must demonstrate eligibility at the time it filed the petition.2 U.S. Citizenship and 
Immigration Services may not approve a visa petition at a future date after a petitioner or a beneficiary 
becomes eligible under a new set of facts. 3 This means that the Beneficiary must have access to the 
tools and facilities necessary to perform the duties on the date she was approved to begin work in 
H-1 B status. Second, a review of the RFE res onse does not corroborate the Petitioner's assertions 
that it was on a waiting list wi,.......~-----~~ Instead, the Petitioner merely provided 
information related to the services~-----~offers. However, even if this material reflected 
the Petitioner was on a waiting list, this did not equate to being able to provide the necessary facilities 
for the Beneficiary to perform the work on the date it committed to begin employing her. 
Turning to the second laboratory, within the documentation it claims was included with its NOIR 
response, the Petitioner stated: "In June 201 7, due to the need for a lab with equipment to do tests, 
[the Petitioner] rented a lab froml I" and it provided a lease document in support of 
this assertion. From this statement, the Petitioner did not establish that the Beneficiary was able to 
perform all the proffered position's duties between November 2016 and June 2017 without the use of 
such a laboratory. Nor has the Petitioner sufficiently demonstrated that the necessary laboratory 
equipment and environment to perform such work was not only available, but was otherwise provided 
by the Petitioner and utilized by the Beneficiary. The Petitioner's lease executed seven months after 
2 8 C.F.R. § 103.2(b)(l), (12). 
3 Matter of Michelin Tire Co1p., 17 l&N Dec. 248,249 (Reg'l Comm'r 1978) (finding that nonimmigrant eligibility criteria 
must be met at the time a petitioner files the petition). 
2 
the Beneficiary's requested start date farther establishes that the Petitioner was not able to demonstrate 
eligibility when it filed the petition. 
We conclude that the remaining elements the Petitioner raises on appeal pertaining to its place of work 
associated with the site visit, were either overcome within the appeal, or are not of sufficient 
significance to address here. Although the Petitioner explained why the Immigration Officer was 
unable to determine that the Beneficiary was performing qualifying work at the worksite listed on the 
petition, it has not shown that it could demonstrate eligibility to provide such work when it filed the 
petition. For this reason alone, the Petitioner has not sufficiently overcome the reasons for the 
revocation. 
Since the identified basis we discussed above is dispositive of the Petitioner's appeal, it is unnecessary 
that we address the remaining claims the Petitioner asserts on appeal relating to whether the position 
qualifies as a specialty occupation, or whether the Petitioner was in compliance with the terms and 
conditions of employment. Nevertheless, we will briefly note and summarize them here. 
Within the appeal brief, the Petitioner discusses the specialty occupation nature of the position. 
However, it appears the Petitioner misconstrued the Director's analysis relating to whether the position 
was a specialty occupation. Instead of focusing on the duties or the qualifications to perform them, 
the Director determined that the Petitioner did not show the position was a specialty occupation 
because the organization did not establish that it provided the Beneficiary with the tools and the 
facilities to perform the associated job functions. We addressed these issues above and concluded that 
the Petitioner's claims and evidence were insufficient to meet its burden of proof. 
On the final issue of whether the Petitioner complied with the terms and conditions of the approved 
petition, the Director concluded that because the Petitioner was unable to demonstrate that the 
Beneficiary was performing the duties as listed in the approved petition, that it could not determine 
whether the Beneficiary was being paid the proffered wage. In response, the Petitioner claims that the 
Beneficiary was working for the petitioning company in 2017 and that her work progress was tracked 
by monthly meetings with their president and shareholder, in addition to weekly meetings with other 
collaborators. The Petitioner identifies the Beneficiary's 2017 IRS Form W-2, Wage and Tax 
Statement as supporting evidence. 
First, the Petitioner did not offer evidence to corroborate these assertions relating to monthly or weekly 
meetings. The Petitioner's statements made without supporting documentation are of limited 
probative value and are insufficient to satisfy its burden ofproof. 4 We farther conclude the Form W-2 
does not support the Petitioner's statements that it employed the Beneficiary as outlined in the H-lB 
petition. At best, the Form W-2 reflected that the Beneficiary was performing work for the company 
in that year, but it does not demonstrate the type of work she completed. We observe numerous other 
independent grounds to deny or revoke the petition. However, as the Director did not include these 
adverse factors within the NOIR or within the revocation, we will not address them more folly here. 
ORDER: The appeal is dismissed. 
4 Matter of Sofjici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
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