dismissed H-1B Case: Publishing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 9, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a "start-up publishing company," seeks to employ the Beneficiary as an "Art Director" 
under the H -1 B nonimmigrant classification. See Immigration and Nationality Act (the Act) 
§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, 
denied the petition. The matter is now before us on appeal. Upon de novo review, we will dismiss 
the appeal. 
I. ISSUE 
The issue before us is whether the proffered pos1t10n qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 
II. SPECIALTY OCCUPATION 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
Matter of B-S- LLC 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)( 4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(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 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)( 4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)( 4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
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(b)(6)
Matter of B-S- LLC 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Proffered Position 
The Petitioner claims in the labor condition application (LCA) submitted to support the visa petition 
that the proffered position corresponds to Standard Occupational Classification (SOC) code and title 
27-1011, Art Directors, from the Occupational Information Network (O*NET). 
In an undated letter submitted with the visa petition, the Petitioner referred to itself as a "start-up 
publishing company" established in that "seeks to publish children's books as well as design 
and develop video games." 1 
In that letter, the Petitioner further stated that, in the proffered position, the Beneficiary would "work 
with illustrators and produce illustrations herself." Although the Petitioner stated that it intends to 
hire additional employees in the future, it appeared not to have any employees when it submitted the 
visa petition. The Petitioner provided the following additional description of the duties of the 
proffered position: 
Executive Level Management of Art Design - 40% of the time. 
• Determine how to best represent a concept visually; 
• Formulate basic layout design or presentation approach, and specify material 
details, such as style and size of type, photographs, graphics, animation, video 
and sound; 
• Develop the overall look or style of a publication or video game design; 
• Present final layouts to for approval; [sic] 
1 In fact, Nevada public records show that the Petitioner filed for LLC status on March 15, 2015. 
(last visited Feb. 8, 20 16). The Petitioner filed the instant visa petition on April 6, 2015, less than one month later. 
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Matter of B-S- LLC 
• Determine objectives, budget, background information, and presentation 
approaches, styles, and techniques; 
• Review illustrative material to determine if it conforms to standards and 
specifications; 
• Attend photo shoots and printing sessions to ensure that the products needed 
are obtained; 
• Create custom illustrations or other graphic elements; 
• Mark up, paste, and complete layouts, and write typography instructions to 
prepare materials for typesetting or printing. 
Executive Level Planning & Management of Corporate Financial Activities -
30% of the time 
• Manage accounts and projects, working within budget and scheduling 
requirements. 
• Confer with clients to determine budgets; 
• Negotiate with printers and estimators to determine what serv1ces will be 
performed; 
• Develop detailed budgets and timelines; 
• Conceptualization and help design interfaces for multimedia games, products 
and devices; 
• Prepare detailed storyboards showing sequence and timing of story 
development for video game production; 
• Negotiate contract with clients for pricing of art design illustrations. 
Supervision of Artist Assistants - 30% of the time 
• Review and approve art materials, copy materials and proofs developed by 
artist assistants; 
• Oversee all work created by artist assistants; 
• Convey client desires and expectations to artist assistants; 
• Hire, train and direct staff members who develop design concepts into art 
layouts or who prepare layouts for printing. 
The Petitioner also stated: "Due to the high level of theoretical knowledge necessary to perform the 
duties of this position at [the Petitioner] the employee must hold a Bachelor's Degree in Fine Arts." 
C. Analysis 
Initially, we observe that "fine arts" are considered to include, inter alia, music, poetry, painting, 
sculpture, film, and photography. Thus, stating that the proffered position requires a degree in fine 
arts suggests that studying any subject within that wide array would be a sufficient educational 
preparation for the proffered position. As such, the Petitioner has not asserted that the proffered 
position requires a degree in a specific specialty and has not, therefore, effectively alleged that the 
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Matter of B-S- LLC 
proffered position is a specialty occupation position. The visa petition must be denied and the 
appeal dismissed on this basis alone. 
The record is also devoid of substantial documentary evidence as to the specific duties of the 
proffered position. Given the lack of detail and corroborating evidence, we cannot determine the 
substantive nature of the proffered position. For example, the claimed duties require the Beneficiary 
to perform, in large part, executive level planning and management of corporate financial activities such 
as developing budgets, managing accounts, and negotiating contracts with clients; however, the record 
is devoid of any evidence that the Petitioner has developed budgets, accounts to manage, and has 
negotiated contracts with clients. 
The Petitioner also claims that a large part of the Beneficiary's duties involve supervision of artist 
assistants. However, the Petitioner's organizational chart shows that all positions in the Petitioner's 
operation are vacant, other than the position of the Petitioner's owner and the position proffered in 
this case, for which the Beneficiary has been selected. That is, at the time of filing the visa petition, 
the Petitioner had only one employee, its "Sole Member 100% Owner," and no positions subordinate 
to the proffered position filled. Thus, the evidence demonstrates that, when the Petitioner filed the 
instant visa petition, it had no subordinate staff for the Beneficiary to direct. 
That the Petitioner did not establish the substantive nature of the work to be performed by the 
Beneficiary, in itself, precludes a finding that the proffered position is a specialty occupation under 
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 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. 
The Petitioner has not satisfied any of the criteria at 8 C.F .R. § 214.2(h)( 4 )(iii)(A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
Further, the record of proceedings does not contain sufficient evidence that the Petitioner was 
conducting business at the time of filing the visa petition. The record contains insufficient evidence 
that, when it filed the visa petition, the Petitioner had any previous sales. Although the Petitioner 
asserts that it had ongoing projects, the evidence is insufficient to establish the existence of those 
projects. 
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 
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Matter of B-S- LLC 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). As 
such, eligibility for the benefit sought must be assessed and weighed based on the facts as they 
existed at the time the instant petition was filed and not based on what were merely speculative facts 
not then in existence. 
The agency made clear long ago that speculative employment is not permitted m the H-1B 
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 from 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-1B 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). While a petitioner is certainly permitted 
to petition for H -1 B classification on the basis of facts not in existence at the time the instant petition 
was filed, it must nonetheless file a new petition to have these facts considered in any eligibility 
determination requested, as the agency may not consider them in this proceeding pursuant to the law 
and legal precedent cited, supra. 
Furthermore, without a showing that the Petitioner was conducting business at the time of filing the 
H-1B petition, it is impossible for USCIS to determine whether the Petitioner made a bonafide offer 
of employment to the Beneficiary and that it has sufficient work for the beneficiary to perform for 
the duration of the petition. To prove its job offer is bonafide, the Petitioner must demonstrate that 
it was capable of paying the proffered wage to the Beneficiary at the time that the petition was filed. 
Without contracts or other evidence in the record demonstrating that the Petitioner was conducting 
business at the time that the petition was filed, we cannot find, absent evidence to the contrary, that 
the Petitioner demonstrated its realistic ability to comply with the law and pay at least the prevailing 
wage to the instant Beneficiary for whom the Petitioner filed this nonimmigrant petition. 
As a final matter, we will discuss an issue regarding the Petitioner's credibility. The Petitioner 
claims to be a limited liability company (LLC); however, it has submitted a copy of its supposed 
partnership agreement which conflicts with its claim that it is an LLC. The partnership agreement 
(b)(6)
Matter of B-S- LLC 
states that "The partners ... agree that they shall be considered partners in business for the following 
purpose: Publishing company to publish children's books as well as design and develop video 
games." The partnership agreement further states that "[t]he partnership shall be conducted under 
the name of [the Petitioner]" with the same federal tax ID number as the Petitioner and maintain 
offices at the Petitioner's address. The agreement, however, only lists 
one partner despite the 
agreement's clear purpose of dictating the terms of a partnership between at least two partners under 
the laws of the state of Nevada. For example, the partnership agreement states, "In the event a 
partner withdraws or retires from the partnership for any reason, including death, the remaining 
partners may continue to operate the partnership using the same name." Confusingly, the 
partnership agreement also provides the following chart detailing the capital contribution of each 
partner and the percentage of each partner's share of the partnership: 
Name ofPartner Percentage of Capital Cash Capital %Share 
Contribution Contribution 
100% $100,000 100% 
TOTAL: 100% $100,000 100% 
Black's Law Dictionary (lOth Ed.), defines a partnership as "[a] voluntary association of two or 
more persons who jointly own and carry on a business for profit." The Petitioner who claims to be 
an LLC has submitted a copy of its pminership agreement for a partnership consisting of only one 
partner. The record of proceedings does not contain evidence explaining this inconsistency. "[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. 
III. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. Accordingly, the appeal will 
be dismissed and the petition denied. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-S- LLC, ID# 16083 (AAO Feb. 9, 2016)