dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 17245680 
Appeal of Vermont Service Center Decision 
Form 1-29, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 25, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonirnrnigrant 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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not filed 
the instant amended petition prior to the Beneficiary's employment at a new worksite inl I Ohio, 
as required . In these proceedings , it is the Petitioner's burden to establish eligibility for the requested 
benefit by a preponderance of the evidence. 2 
Upon de nova review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
According to the filing requirements for applications and petitions found at 8 C.F .R. § 103 .2(b )( 1 ), 
... [a]n 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 . Any 
evidence submitted in connection with a benefit request is incorporated into and 
considered part of the request. 
The regulations require that before filing a Form 1-129, Petition for a Nonimmigrant Worker, a 
petitioner obtain a certified labor condition application (LCA) from the Department of Labor (DOL) 
in the occupational specialty in which the H-lB worker will be employed. 4 Additionally, a petitioner 
1 See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b) , 8 U.S.C. § 1101(a)(l5)(H)(i)(b). 
2 See section 291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 See 8 C.F.R. § 214.2(h)(4)(i)(B). 
submits the LCA to the DOL to demonstrate that it will pay an H-lB 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. 5 
A change in the place of employment of a beneficiary to a geographical area requiring a new 
corresponding certified LCA with respect to that beneficiary may affect eligibility for H- lB status; it 
is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (1 l)(i)(A) (2014). 6 
When there is a material change in the terms and conditions of employment , the petitioner must file 
an amended or new H-lB petition with the corresponding LCA. Thus , H-lB petitioners are required 
to file an amended or new petition before placing an H-lB employee at a new place of employment 
not covered by an existing, approved H- lB petition. 
Short-term placements: Under certain circumstances, a petitioner may place an H-lB employee at a 
new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the 
"home" worksite ), without obtaining a new LCA. 7 In these situations, the petitioner does not need to 
file an amended or new petition provided there are no material changes in the terms and conditions of 
the H-lB worker's employment. 8 
II. ANALYSIS 
The Petitioner, a software development and consulting company, filed the instant pet1t10n on 
September 28, 2018, noting the petition was an amended petition. 9 The Petitioner indicated on the 
Form 1-129 that the Beneficiary would be assigned to work offsite and that the Beneficiary would be 
placed with the end-client throu h contractual agreements witH I 
(mid-vendor) an....._ _________ .....,... _____ ___, (second mid-vendor). The Petitioner 
identified the Beneficiary's work location as,,__....,...-Ohio at the end-client's facility and submitted a 
certified LCA, signed September 17, 2018, for that work location. The Petitioner acknowledges the 
Beneficiary began work at the new location on July 2, 2018, approximately 89 days prior to filing the 
amended petition. The Director determined that the Petitioner had not filed a certified LCA prior to a 
change in work conditions. 
On appeal, the Petitioner asserts that it was initially not required to file a certified LCA ( or an amended 
petition) for the new work location because the Beneficiary's initial placement at the work location 
was for a duration of three months only. The Petitioner claims that the initial placement falls within 
the parameters of a "short-term placement" because the placement was temporary, thus there were no 
material changes in the terms and conditions of the Beneficiary's employment. The Petitioner points 
5 See section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l)(A) ; 20 C.F.R. § 655.731 (a). 
6 Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). 
7 See 20 CFR 655.735. 
8 USCIS Policy Memorandum PM-602-0120 , USCIS Final Guidance on When to File an Amended or New H-lB Petition 
After Matter of Simeio Solutions, LLC (Jul. 21 , 2015), https ://www.uscis.gov /sites/default/files/document /memos/2015-
072 l_Simeio _Solutions_ Transition_ Guidance_Memo _Format_ 7 _21 _15.pdf. 
9 The Petitioner filed an H- lB petition on March 3, 2017 which was approved on or about March 24, 2017, for a validit: 
period from May 4, 2017 to May 3, 2020. The ce1tified LCA filed in support of the petition was for a location in I I 
Arizona . 
2 
to a work order from the end-client which identifies the Beneficiary, lists the start date as July 2, 2018, 
and lists the duration as "3 months," to support its claim. 
We note that the record includes only two pages of the three-page work order referenced by the 
Petitioner. The work order does not include a date establishing when it was issued. Without a 
complete document which includes the signature date and other relevant information, the document 
has less probative value. Next, the record includes several other documents that are inconsistent with 
the three-month placement, the Petitioner claims it initially envisioned. For example, the end-client's 
September 7, 2018 letter in support of the amended petition states that the end-client "expect[s] to 
utilize [the Beneficiary's] services at least through June 2019." 10 Significantly, the statement of work 
between the Petitioner and the first mid-vendor for the Beneficiary's services at the end-client's facility 
inl I Ohio, which is dated June 25, 2018, lists the start date as July 2, 2018 and the duration as 
"12 Months" and the end date as "12 Months Contract." 11 The Petitioner has not persuasively 
demonstrated that it intended the Beneficiary's initial placement at the end-client facility to be 
short-term. To the contrary, the record includes evidence of the Petitioner's expectation that the 
placement would be for 12 months. 12 The Petitioner's failure to timely file an amended petition and 
a corresponding LCA reflecting material changes to the terms and conditions of employment specified 
in the original petition requires a denial of the amended petition. The Petitioner has not provided 
probative and consistent evidence sufficient to overcome the Director's decision. 
III. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
10 The second mid-vendor's September 7, 2018 letter uses the same language. The first mid-vendor's September 10, 2018 
letter also uses the same language. 
11 We note that the Petitioner, in response to the Director's notice of intent to deny the petition, submitted a July 9, 2020 
letter from the end-client stating that it initially expected the Beneficiary's services would run from July 2, 2018 to October 
1, 2018, but that soon after the Beneficiary began work on the project it became apparent that the project would continue 
and the Beneficiary would be required to continue working on it. However, this letter does not explain the Petitioner's 
expectation that the Beneficiary would work on the project for 12 months as depicted in the statement of work dated June 
25, 2018. 
12 Also, as the Director noted, a 90-day claimed temporary placement does not fall within the parameters of a sho11-term 
exception. See USCIS Policy Memorandum PM-602-0120, supra, at 2. Further, as the Director determined, the 
Beneficiary's paystubs do not reflect that she was working in Arizona and do not reflect the Petitioner's intentions 
regarding her placement. 
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