dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S- INC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 8, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting and development services firm, seeks to employ the 
Beneficiary as a "programmer analyst" and to classify him as a nonimmigrant worker in a specialty 
occupation. See Immigration and Nationality Act (the Act)§ 101(a)(15)(H)(i)(b) ofthe Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service 
Center, initially approved the nonimmigrant visa petition. Upon subsequent review of the record, 
the Director issued a notice of intent to revoke, and ultimately revoked approval of the petition. The 
matter is now before us on appeal. Upon de novo review, we will dismiss the appeal. 
I. ISSUES 
The issues before us are whether (1) the Director properly revoked approval of the petition under 
8 C.P.R. § 214.2(h)(11)(iii)(A)(l) as the Beneficiary is no longer employed in a capacity specified in 
the petition; and (2) whether the Director properly revoked approval of the petition under 8 C.P.R. 
§ 214.2(h)(11)(iii)(A)(5) because its approval violated 8 C.P.R. § 214.2(h) or involved gross error in 
that the proffered position does not qualify as a specialty occupation. 1 
II. REVOCATION AUTHORITY 
With regard to the revocation of the approval of a petition, the regulation at 8 C.P.R. § 214.2(h)(11) 
states the following: 
Revocation of approval of petition--(i) General. (A) The petitioner shall 
immediately notify the Service of any changes in the terms and conditions of 
employment of a beneficiary which may affect eligibility . . . . An amended petition 
on Form I-129 should be filed when the petitioner continues to employ the 
beneficiary. If the petitioner no longer employs the beneficiary, the petitioner shall 
send a letter explaining the change(s) to the director who approved the petition .... 
1 
We follow the preponderance of the evidence standard as specified in Matter ofChawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
Matter of S-S- Inc 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-lB petition 
pursuant to 8 C.F.R. § 214.2(h)(ll)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of 
intent to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition, or if the beneficiary is no longer 
receiving training as specified in the petition; or 
(2) The statement of facts contained in the petition was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
(4) The petitioner violated requirements of section 101(a)(15)(H) of the 
Act or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for 
the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 
30 days of receipt of the notice. The director shall consider all relevant 
evidence presented in deciding whether to revoke the petition in whole or in 
part. If the petition is revoked in part, the remainder of the petition shall 
remain approved and a revised approval notice shall be sent to the petitioner 
with the revocation notice. 
For the reasons discussed below, we have concluded that the Director's decision to revoke approval 
ofthe petition was correct. Accordingly, we will dismiss the appeal. 
III. BENEFICIARY NO LONGER EMPLOYED PURSUANT TO PETITION 
A. Legal Framework 
As the Beneficiary was no longer employed in the capacity described in the H -1 B petition, the 
Director was correct in revoking the petition under 8 C.F.R. § 214.2(h)(ll)(iii)(A)(l). 
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Matter of S-S- Inc 
In pertinent part, the Act defines an H-1B nonimmigrant worker as: 
[A ]n alien ... who is coming temporarily to the United States to perform services ... 
in a specialty occupation described in section 214(i)(l) ... who meets the 
requirements for the occupation specified in section 214(i)(2) ... and with respect to 
whom the Secretary of Labor determines and cerf?fies to the [Secretary of Homeland 
Security} that the intending employer has filed with the Secretary [of Labor] an 
application under section 212(n)(l) .... 
Section 101(a)(l5)(H)(i)(b) ofthe Act (emphasis added).2 
In turn, section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(1)(A), requires an employer to 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 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); Michal Vojtisek-Lom & Adm'r Wage & 
Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-97, 2009 WL 2371236, at (Dep't of Labor Admin. 
Rev. Bd. July 30, 2009). 
Implemented through the Labor Condition Application (LCA) certification process, section 
212(n)(l) is intended to protect U.S. workers' wages by eliminating economic incentives or 
advantages in hiring temporary foreign workers. See, e.g, 65 Fed. Reg. 80,110, 80,110-111, 80,202 
(2000). The LCA currently requires petitioners to describe, inter alia, the number of workers 
sought, the pertinent visa classification for such workers, their job title and occupational 
classification, the place(s) of intended employment, the prevailing wage for the occupational 
classification in each employment area in which the places of intended employment lie, and the 
actual rate of pay. 
To promote the U.S. worker protection goals of a statutory and regulatory scheme that allocates 
responsibilities sequentially between the U.S. Department of Labor (DOL) and the U.S. Department 
of Homeland Security (DHS), a prospective employer must file an LCA and receive certification 
from DOL before an H-1B petition may be submitted to USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 
C.F.R. § 655.700(b)(2). If an employer does not submit the LCA to USCIS in support of a new or 
amended H -1 B petition, the process is incomplete and the LCA is not certified to the Secretary of 
Homeland Security. See section 10l(a)(15)(H)(i)(b) ofthe Act; 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 
C.F.R. § 655.700(b); see also 56 Fed. Reg. 37,175,37,177 (1991); 57 Fed. Reg. 1316, 1318 (1992) 
(discussing filing sequence). 
2 In accordance with section 1517 oftitle XV ofthe Homeland Security Act of2002 (HSA), Pub. L. No. 107-296, 116 
Stat. 2135, any reference to the Attorney General in a provision of the Act describing functions which were transferred 
from the Attorney General or other U.S. Department of Justice official to the U.S. Department of Homeland Security 
(DHS) by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See 6 U.S.C. § 557 (2003) 
(codifying HSA, tit. XV,§ 1517); 6 U.S.C. § 542 note; 8 U.S.C. § 1551 note. 
(b)(6)
Matter of S-S- Inc 
In the event of a material change to the terms and conditions of employment specified in the original 
petition, the Petitioner must file an amended or new petition with USCIS with a corresponding LCA. 
Specifically, the pertinent regulation requires: 
The petitioner shall file an amended or new petition, with fee, with the Service 
Center where the original petition was filed to reflect any material changes in the 
terms and conditions of employment or training or the alien's eligibility as specified 
in the original approved petition. An amended or new H-1C, H-lB, H-2A , or H-2B 
petition must be accompanied by a current or new Department of Labor 
determination. In the case of an H-1 B petition, this requirement includes a new labor 
condition application. 
8 C.P.R. § 214.2(h)(2)(i)(E) (emphasis added). Furthermore, petitioners must "immediately notify 
the Service of any changes in the terms and conditions of employment of a beneficiary which may 
affect eligibility" for H-1B status and, if they will continue to employ the Beneficiary , file an 
amended petition . 8 C.P.R.§ 214.2(h)(11)(i)(A) . 
A change in the place of employment of a beneficiary to a geographical area requiring that a 
corresponding LCA be certified to DHS with respect to that beneficiary may affect eligibility for 
H-lB status and is, therefore, a material change for purposes of8 C.P.R.§ 214.2(h)(2)(i)(E) and (11) 
(i)(A). When there is a material change in the terms and conditions of employment, the Petitioner 
must file an amended or new H-1 B petition with the corresponding LCA. 8 C .F .R. 
§ 214.2(h)(2)(i)(E) ; Matter ofSimeio Solutions, 26 I&N Dec. 542. 
B. Analysis 
On the Form I-129, the Petitioner stated that the Beneficiary would work at an offsite location at 
Wisconsin for The Petitioner included a 
document entitled "Terms of Employment," which stated that the Beneficiary would work from 
October 1, 2011, through October 1, 2013, on an end client project for The Petitioner stated 
that it would provide the Beneficiary with all necessary tools and that the Beneficiary would report 
directly to the Petitioner ' s Vice President , However, the Beneficiary ' s 
identification submitted by the Petitioner was issued by the end client and made no reference to the 
Petitioner. 
Although the Petitioner stated that the Beneficiary would work as a programmer analyst , the end 
client letter submitted with the petition stated that the Beneficiary would work as a "web 
development contractor ," and the purchase order stated that the Beneficiary would work on "PHP 
Development." While the Petitioner indicated in its support letter 
dated August 25, 2011, that the 
Beneficiary would spend the majority of his time on "design & development " and "programming & 
implementation ," the end client stated that the Beneficiary would: 
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(b)(6)
Matter of S-S- Inc 
*Build Kap Framework Business Objects for use of the websites *Program in 
PHP *Program javascript objects for use of the front-end *Build queries for MySQL 
databases *Optimize code of web developers *Program website using PHP and 
MySQL queries utilizing the Kap Framework *Build front-end artwork (.psd) for 
planning *Convert approved artwork to smarty templates (.html, .css & .js) *Program 
javascript objects for use of the front-end templates *Perform other duties as 
assigned. 
The purchase order, dated April 26, 2011, also indicated that the project was scheduled to only last 
six months from its April 28, 2011, start date. However, the requested H -1 B validity period was 
from October 1, 2011, to October 1, 2013. 
On May 21, 2012, an administrative site visit was performed at 
an end-client representative stated that the Beneficiary had not 
indicated in the petition since September 2011. 
location, and 
been working at the worksite 
On appeal, the Petitioner states that the Beneficiary worked for Wisconsin until 
November 2011, and submits time sheets showing that the Beneficiary worked there until November 
4, 2011. The Petitioner further states that the Beneficiary began working at another end client site in 
Wisconsin on 
November 19, 2011, and that the Petitioner obtained a new certified LCA 
on November 18, 2011. In addition, the Petitioner states that the Beneficiary went to work at 
another end client site in Oregon on September 12, 2012, and that it also obtained a new 
certified LCA for that location on September 12, 2012. According to the Petitioner, the Beneficiary 
was shot on 2012, in Wisconsin. The Petitioner did not explain why the 
Beneficiary was still located in on October 26, 2012, when he had purportedly begun 
working at the Petitioner's end client site in Oregon approximately six weeks prior to that 
date. The Beneficiary does not appear to have worked from October 26, 2012, until July 29, 2013, a 
period of time the Petitioner describes as a medical leave of absence. On July 29, 2013, the 
Beneficiary began working at the Petitioner's end client location in Illinois pursuant to 
an LCA certified on July 29, 2013.3 This appears to have been the last location where the 
Beneficiary worked pursuant to the present petition. 
3 We note that despite the Beneficiary working at four different client sites in three different states over the duration of 
the petition , the Petitioner did not submit an itinerary listing all of these client sites and projects in support of the 
petition . Further, in addition to the discrepancies described above , we also note that on appeal the Petitioner submits a 
client letter regarding the Beneficiary's work in . Wisconsin, which states that the Beneficiary worked on that 
project from November 2011 to April 2012, leaving a five-month gap between when the Beneficiary left the project in 
Wisconsin and started working on the new project in Oregon on September 12, 2012. In addition 
to raising questions about whether the Beneficiary was benched in between projects, this letter also states that a general 
bachelor's degree was required to perform the work, without indicating that the degree needed to be in a specific 
specialty. This directly contradicts other client letters submitted that state the proffered position requires at least a 
Bachelor's degree in computer science, engineering , math, or a related field . "[l]t is incumbent upon the petitioner to 
resolve the inconsistencies by independent objective evidence ." Matter ofHo, 19 f&N Dec. 582,591 (BIA 1988). Any 
attempt to explain or reconcile such inconsistencies wi II not suffice unless the Petitioner submits competent objective 
evidence pointing to where the truth lies. !d. at 591-92 . 
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(b)(6)
Matter of S-S- Inc 
IIi any event, as discussed above, the Petitioner stopped working for 
Wisconsin, on November 4, 2011, prior to the administrative site visit. Having materially changed 
the Beneficiary's authorized place of employment to a geographical area not covered by the original 
LCA, the Petitioner was required to immediately notify USCIS and file an amended or new H-lB 
petition, along with a corresponding LCA certified by DOL, with both documents indicating the 
relevant change. 8 C.F.R. § 214.2(h)(2)(i)(E), (h)(l1)(i)(A). By not filing an amended petition with 
a new LCA, or by attempting to submit a preexisting LCA that has never been certified to USCIS 
with respect to a specific worker, a petitioner may impede efforts to verify wages and working 
conditions. Full compliance with the LCA and H-lB petition process, including adhering to the 
proper sequence of submissions to DOL and USCIS, is critical to the U.S. worker protection scheme 
established in the Act and necessary for H-lB visa petition approval. This would have been 
especially pertinent in this case because the Petitioner did not demonstrate that it employed the 
Beneficiary in the same position as proffered in the present petition as is indicated by the change in 
minimum requirements to a general bachelor's degree, which indicates the Beneficiary was not 
employed in a specialty occupation as will be discussed further in the next section. Therefore, the 
Director was correct in revoking the petition pursuant to 8 C.F.R. § 214.2(h)(ll)(iii)(A)(J) because 
the Beneficiary was no longer employed by the Petitioner in the capacity specified in the petition. 
IV. SPECIALTY OCCUPATION 
The Director properly revoked approval of the petition under 8 C .F.R. § 214.2(h)(ll)(iii)(A)(5) 
because the proffered position does not qualify as a 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 
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. 
Matter of S-S- Inc 
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. SeeK 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 o.fW-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, 
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 
Matter of S-S- Inc 
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-lB 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. Analysis 
As discussed above, the Petitioner submitted conflicting information regarding the Beneficiary's 
assignments, and it does not appear that the assignments covered the duration of the petition, nor that 
all of them required the Beneficiary to work in the same position requiring at least a bachelor's 
degree in a specific specialty as was stated in the petition. Without further information regarding 
specific projects to which the Beneficiary would be assigned that covers the duration of the period of 
employment requested, we are not able to ascertain what the Beneficiary would do, where the 
Beneficiary would work, as well as how this would impact circumstances of his relationship with the 
Petitioner. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. 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 set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). 
Based on all of the above reasons, including the lack of reliable, detailed information and 
documentation regarding the client projects and the specific duties the Beneficiary will perform on 
them, as well as where the Beneficiary would actually work, we find the evidence of record 
insufficient to establish that the Beneficiary would be employed to perform the work as claimed. 
Thus, we find that the evidence of record is insufficient to establish the substantive nature of the 
work to be performed by the Beneficiary. 
The inability to establish the substantive nature of the work to be performed by the Beneficiary 
consequently precludes a finding that the proffered position satisfies any criterion at 8 C.P.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 
Matter of S-S- Inc 
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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 
214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
Therefore, the Director was correct in revoking the petition pursuant to 8 C.F.R. § 
214.2(h)(11)(iii)(A)(5) because the proffered petition does not qualify as a specialty occupation, and 
approval ofthe petition would therefore violate 8 C.F.R. § 214.2(h). 
V. CONCLUSION 
In visa petition proceedings, 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 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 ofS-S- Inc, ID# 14797 (AAO Feb. 8, 2016) 
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