dismissed H-1B Case: Semiconductor Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 8935879 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 28, 2020 
The Petitioner, a semiconductor design and development company, seeks to temporarily employ the 
Beneficiary as a "member of technical staff/IC design engineer" 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 denied the petition, concluding that the record did not 
establish that eligibility at the time the Form 1-129 was received by U.S. Citizenship and Immigration 
Services (USCIS) due to an invalid Labor Condition Application (LCA). 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 2 
We review the questions in this matter de nova. 3 Upon de nova review, we will dismiss the appeal. 
I. LABOR CONDITION APPLICATION 
A. Legal Framework 
General requirements for filing immigration applications and petitions are set forth at 8 C.F.R. 
§103.2(a)(I) as follows: 
Every form, benefit request, or other document must be submitted to OHS and executed 
in accordance with the form instructions ... . The form's instructions are hereby 
incorporated into the regulations requiring its submission .... 
Further discussion of the filing requirements for applications and petitions is found at 8 C.F.R. § 8 
103.2(b)(I), which states in pertinent part: 
1 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 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
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. 
In matters where evidence related to filing eligibility is provided in response to a director's request for 
evidence, 8 C.F.R. 8 § 103.2(b)(12) states: 
A benefit request shall be denied where evidence submitted in response to a request for 
evidence does not establish filing eligibility at the time the benefit request was filed. A 
benefit request shall be denied where any benefit request upon which it was based was 
filed subsequently .... 
The regulations require that before filing a Form 1-129 petition on behalf of an H-1B worker, a 
petitioner must obtain a certified LCA from the Department of Labor (DOL) in the occupational 
specialty in which the H-1B worker will be employed.4 The instructions that accompany the Form 
1-129 also specify that an H-1B petitioner must document the filing of an LCA with DOL when 
submitting the Form 1-129.5 
B. Analysis 
In the instant case, the Petitioner filed the Form 1-129 with USCIS on April 1, 2019. Although it 
provided a certified LCA with the petition, the LCA indicated in section H.a. that it was not H-1B 
dependent. The Director issued a Request for Evidence (RFE) on July 23, 2019, which (1) notified 
the Petitioner that Service records indicated that it was an H-1B dependent employer and (2) provided 
the Petitioner an opportunity to submit evidence to confirm the claim it made in section H.a. of the 
LCA. 
In its RFE response, the Petitioner provided spreadsheets which purported to demonstrate that the 
Petitioner employed thirty-eight individuals, twelve of whom were in H-1B status at the time of filing. 6 
The Petitioner also submitted its quarterly tax filings for the first quarter of 2019 and the last quarter 
of 2018 in order to confirm the employees on its payroll at the time of filing. The Petitioner argued 
that because it employed twelve individuals in H-1B status at the time of filing, it was therefore not 
an H-1B dependent employer. 
Upon review, the Director denied the petition, concluding that the documentation was insufficient to 
clarify the inconsistency between the Petitioner's claims and the Service records. Specifically, the 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
5 A petitioner submits the LCA to the DOL to demonstrate that it will pay an H-1B worker the higher of either the prevailing 
wage for the occupational classification in the area of employment or the actual wage paid by the employer to other 
employees with similar duties, experience, and qualifications. Section 212(n)(1) of the Act; 
20 C.F.R. § 655.731(a). 
6 The relevant definition states that an H-1B dependent employer is one which employs at least 26 but not more than 50 
full-time employees in the United States, of which more than 12 are H-18 nonimmigrant employees. (emphasis added). 
See 20 C.F.R. 5 655.736(a)(l)(i)(A)-(B). 
2 
Director noted that the Petitioner's RFE response offered no explanation for four approved H-1B 
petitions that the Petitioner had not included in its spreadsheet. 
On appeal, the Petitioner provides a new spreadsheet and specifically addresses the four petition 
approvals referenced in the Director's decision. The Petitioner contends that the Director erred 
because one of the four unaccounted for petitions was an extension of status for an employee already 
counted in the twelve; one of the four never joined employment with the Petitioner and a withdrawal 
request of the petition had been initiated; and the other two of the four petition approvals were for 
employees that joined after the filing of the instant petition. 
Upon review, we agree with the Director's conclusion that the Petitioner's documentation is 
insufficient to clarify the inconsistency between the Petitioner's claims and the Service records. First, 
Service records do not indicate that the Petitioner initiated a withdrawal for the above-referenced 
petition approval. The Petitioner submitted no documentary evidence of a withdrawal or even an 
initiation of a withdrawal. Moreover, the beneficiary of that petition appears to have been in H-1B 
status in the United States at the time of filing. As such, the Petitioner's assertions concerning this 
individual are insufficiently documented. If we add this individual to the twelve the Petitioner already 
claimed as employees in H-1B status, this would constitute thirteen employees in H-1B status at the 
time of filing. This alone would merit a finding that the Petitioner is definitionally H-1B dependent. 
In addition to the above, the Petitioner's spreadsheet does not sufficiently document the immigration 
status of relevant individuals at the time of this petition's filing. According to the Petitioner's 
employee spreadsheet on appeal, several H-1B employees "left the employment" prior to the filing of 
the instant H-1B petition. Initially, we note that the term "left the employment" insufficiently accounts 
for their status and whereabouts, as this could mean these individuals left for temporary travel or other 
approved leave. Further, the Petitioner provided insufficient documentation that these employment 
departures actually occurred. For instance, the Petitioner's documentation does not include human 
resources documentation of an employee's departure or passport entry/exit stamps to support a 
conclusion that those individuals were not in the United States in H-1B status at the time of filing. 
Finally, the regulation at 8 C.F.R. § 214.2(h)(I l)(i)(A) specifically requires a petitioner to notify the 
director who approved the petition if a petitioner no longer employs the beneficiary. Although the 
Petitioner claims that these beneficiaries had "left the employment" prior to the petition filing, the 
Petitioner has not provided sufficient corroborating evidence to support this claim. 7 
The Petitioner's quarterly tax returns also do not provide sufficient basis to establish the total number 
of employees on the Petitioner's payroll at the time of this petition's filing. The returns do not appear 
to be certified and therefore, it is unclear whether these tax documents were actually ti led and accepted 
by the IRS. As such, these tax statements are of diminished probative value. 
Because a petitioner must establish that all eligibility requirements for the immigration benefit have 
been satisfied from the time of the filing and continuing through adjudication, 8 a visa petition may not 
be approved at a future date after a petitioner or beneficiary becomes eligible under a new set of facts. 9 
7 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
8 8 C.F.R. § 103.2(b)(1). 
9 See Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg'I Comm'r 1978). 
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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. Upon a review of the record in its totality, we conclude 
that the Petitioner submitted insufficient documentation to clarify the inconsistency between the 
Petitioner's claims and the Service records. As such, the Petitioner has not established its eligibility 
at the time the Form 1-129 was received by USCIS. 
II. SPECIALTY OCCUPATION 
A. Analysis 
Though not a stated reason for the Director's denial, we also conclude that the Petitioner has not 
established that the proffered position qualifies as a specialty occupation. Specifically, the Petitioner 
has not sufficiently established the substantive nature of the proffered position, which precludes a 
determination of whether the proffered position qualifies as a specialty occupation under sections 
101(a)(15)(H)(i)(b), 214(i)(1) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(A)(1), 8 C.F.R. § 214.2(h)(4)(ii) and 
(i i i)(A) .10 
On the LCA submitted in support of the H-1B petition, the Petitioner designated the proffered position 
under the occupational category "Electronics Engineers" corresponding to the Standard Occupational 
Classification code 17-2072.11 When determining whether a position is a specialty occupation, we 
look at whether the position actually requires the theoretical and practical application of a body of 
highly specialized knowledge attained through at least a baccalaureate degree in a specific discipline. 
The Petitioner provided many abstract and vague job duties such as the following verbatim 
descri pti ans: 
I Ensure Top level logic is minimal; 
o Lint is performed, and warnings/errors are understood and prioritized: 
o Cadence Genus/ Synopsys DC Topo/Graphical 
I Develop physical design methodologies and scripts; 
o Understanding of physical effects in DSM technologies (28nm and 16nm). 
o Tool flow experience either using ICC/ICC2, SOC Encounter/lnnovi ls, 
PrimeTime/ETS and ICY/Calibre; 
o Perform low power flow (power gating, multiple-Vt, voltage islands, dy 11amic 
voltage scaling, body biasing, etc.) 
Though the Petitioner provided promotional materials and a statement of work for the specific project 
upon which the Beneficiary will work, these do not explain the Beneficiary's role in the project such 
that we may ascertain the substantive nature of the position. That is, the Petitioner has not explained 
in detail how tasks such as those listed above would require the theoretical and practical application 
10 The Petitioner submitted documentation to support the H-1B petition, including evidence regarding the proffered 
position and its business operations. Although we may not discuss every document submitted, we have reviewed and 
considered each one. 
11 For more information, visit the Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
"Electrical and Electronics Engineers," https://www.bls.gov/ooh/architecture-and-engineering/electrical-and-electronics­
engineers.htm and DOL's Occupational Information Network (O*NET) summary report for "Electronics Engineers, 
Except Computer" at https://www.onetonline.org/link/summary/17-2072.00 (last visited Aug. 27, 2020). 
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of a body of highly specialized knowledge. As described, these duties do not allow us to understand 
what the Beneficiary will actually be doing in the proffered position. The Petitioner makes little 
attempt to explain what these technologies and tools do or why use of them would require specialized 
knowledge. The Petitioner must ensure the material duties sufficiently convey the Beneficiary's 
activities in such a way as to allow a person without a great familiarity with the technical nature of these 
functions to be able to grasp what the position consists of, and why it and the duties are so complex.12 
In addition to the above, the Petitioner has provided unclear minimum qualifications for the proffered 
position. While the Petitioner stated in its initial filing that the position requires a bachelor's degree in 
computer science, information systems and technology, CIS, MIS, electronics, electrical engineering, or 
any related field, it added significant additional experience requirements in its RFE response. In its RFE 
response, the Petitioner added that the position requires knowledge and skill "pertaining to software and 
computer programming, applications, mathematics and/or sciences ... experience in block/full chip level 
floor planning, placement techniques, power grid design and clock tree design ... deep understanding of 
EDA tools such as DC/OCT, RC/Genus, ICC, ICC2, Encounter/lnnovus, PrimeTime-SI, Star XT, ICV, 
Conformal, LEC, Redhawk ... proficiency in scripting languages such as Perl Tel synthesis flow." The 
Petitioner has not explained how it measures these requirements or how it would determine whether a 
candidate meets these requirements. Further, the Petitioner has not explained or acknowledged the 
changes in its minimum qualification requirements. 
Lastly, we conclude that the reporting structure for the Beneficiary in the proffered position is unclear. 
In the Beneficiary's employment offer letter1 the Petitioner states that the Beneficiary will report toD 
Senior Vice President I , I In the organizational charts, the Beneficiary 
reports to~-----~ Member of Technical Staff/Physical Design Engineer. As such, the 
Petitioner has not clarified where the proffered position fits in with the overall project and team. This 
inconsistency casts further doubt on the substantive nature of the position. 
The Petitioner has not established the substantive nature of the work that the Beneficiary will perform 
due to insufficient evidence in the record concerning the position duties, as well as inconsistencies in 
the educational qualifications and reporting structure. If we cannot ascertain the proffered position's 
substantive nature, then we cannot determine whether it is a specialty occupation. 
Without sufficient evidence, we are unable to determine whether the Beneficiary will be employed in an 
occupation that meets the statutory and regulatory definitions of a specialty occupation and a position that 
also satisfies at least one of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). The services the Beneficiary 
will perform in the position determine: (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 
12 The court in Sagarwala v. Cissna, 387 F.Supp.3d 56 (D.D.C. 2019), criticized an H-1B petitioner's jargon-heavy job 
description, stating that "[i]t was [the petitioner's] burden to explain what these duties actually entail. Incoherence does 
not equate to complexity." Id. at 68. "[T]he most complex-sounding of those duties were heavy on jargon. The company 
failed to provide any accessible explanation of what those responsibilities actually entailed." Id. at 70. 
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of specialization and complexity of the specific duties, which is the focus of criterion 4. 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
111. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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