remanded H-1B Case: Construction Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 10556806 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 29, 2020 
The Petitioner, a water systems and construction consulting firm, seeks to temporarily employ the 
Beneficiary under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 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. 
In the Request for Evidence (RFE), the Petitioner received notification of evidentiary deficiencies in 
the record related to the Petitioner's employer-employee relationship with the Beneficiary. The 
Petitioner had an opportunity to submit evidence that would support a finding that it had specific, non­
speculative qualifying assignments in a specialty occupation for the duration of the requested 
employment period. Though the Petitioner responded to the RFE, it did not provide contractual 
documentation to evidence any specific, non-speculative assignments upon which the Beneficiary 
would work. The Director of the California Service Center denied the petition, concluding that the 
Petitioner did not establish that the Beneficiary would perform services in a specialty occupation for 
the duration of the requested employment period. 
While this appeal was pending, the U.S. District Court for the District of Columbia issued a decision 
in Itserve Alliance, Inc. v. Cissna, --- F.Supp.3d ---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, 
U.S. Citizenship and Immigration Services (USCIS) rescinded previously issued policy guidance and 
directed its officers to apply the existing regulatory definition at 8 C.F.R. § 214.2(h)(4)(ii) to assess 
whether a petitioner and a beneficiary have an employer-employee relationship. USCIS Policy 
Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020), 
http://www.uscis.gov /legal-resources/policy-memoranda. 
In most cases, our decision will be limited to the evidence in the record at the time of the unfavorable 
decision, as the appellate regulations have never explicitly allowed for the submission of evidence 
with regular appeals. Accordingly, when new evidence is submitted with an appeal, we will apply 
both Matter of Soriano 1 and Matter of Obaigbena 2to determine whether we will consider the evidence 
in our decision. In applying the framework of those cases to the matter at hand, we conclude that the 
RFE provided notice to the Petitioner that an evidentiary deficiency prevented the Director from 
determining whether the Petitioner had specialty occupation work available for the Beneficiary to 
perform. 
The Petitioner had a reasonable opportunity to respond to the deficiency through the RFE process and, 
in fact, did provide an RFE response. Furthermore, we conclude that had the Petitioner wanted to, it 
reasonably could have submitted evidence of the specific contracts for which the Beneficiary's 
services would be utilized prior to the filing of the instant appeal. On appeal, the Petitioner claims 
their contracts predate and were in effect prior to the petition filing date. As such, the Petitioner would 
have been in possession of and capable of submitting these documents within its initial filing or RFE 
response. Accordingly, the AAO is not required to consider this additional evidence submitted on 
appeal. Nevertheless, we conclude that the Director is the more appropriate party to consider the 
impact of the evidence on eligibility for the benefit sought. 
Additionally, the Director may wish to determine whether the Petitioner has sufficiently articulated 
the duties of the proffered position as they relate to the specific projects upon which the Beneficiary 
will work. Many of the proffered position's duties are generic in nature and have been found in 
multiple online job advertisements for a variety of engineering work. For instance, lensa.com 
advertises for an "electrical project engineer" position with Woodard and Curran. 3 Three main duties 
articulated by the Petitioner are found in this announcement. 4 Johnson, Mirmiran & Thompson 
advertise for a "senior water resources engineer/project manager" on lensa.com and a "highways 
project engineer" on glassdoor.com. 5 Both announcements list a duty the Petitioner uses in its 
descriptions: "[p ]Ian, schedule, conduct or coordinate detailed phases of the engineering work in a part 
of a major project or in a total project of moderate scope." 6 Finally, KBR Careers advertises for a 
"senior mechanical engineer" and lists the duty to "[p ]erf 01m work that involves conventional 
engineering practices but may include a variety of complex features and difficult coordination 
requirements," which is a nearly identical statement made by the Petitioner in its list of duties. 7 
1 Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
2 Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
3 https://lensa.com/electrical-project-engineer-jobs/los-angeles/jd/0557 c9b21 a48e9bcb6297a35e2d0bal 1 (last visited Jul. 
29, 2020). 
4 The announcement states: "[t]he successful candidate will work on electrical distribution, relaying, power generation. 
motor control, and lighting projects for our energy, water, wastewater, food and beverage clients on a regional and national 
basis. The candidate will interface with clients to understand their power, lighting, and motor control requirements for 
municipal, utility, and industrial facilities. The candidate will prepare and coordinate engineering reports, studies, 
calculations and drawings. The candidate will also perform construction phase services such as shop drawing review and 
contractor oversight." Id. 
5 Please see the advertisements for the "senior water resources engineer/project manager" at https://lensa.com/senior­
water-resources-engineer--project-manager-jobs/hemdon/jd/e6736fa90a02c3dl 85ae3bla0eb9dlf0 and the "highways 
project engineer" at https://www.glassdoor.com/job-listing/highways-project-engineer-johnson-mirmiran-and-thompson­
JV _ICl 140494_ KO0,25 _ KE26,55.htm?jl=3629725038 (last visited Jul. 29, 2020). 
6 Id. 
7 https://kbr. wd5 .myworkdayjobs.com/ en-US/KBR_ Careers/job/Houston-Texas/Senior-Mechanical-Engineer_ R2013384 
(last visited Jul. 29, 2020). 
2 
We note these advertisements are for a mechanical engineer, an electrical engineer, highway project 
engineer, and a water resources engineer. The Petitioner's use of duties from a wide range of 
engineering projects indicates that the Petitioner has described the proffered position in only broad 
and general terms that could apply to a variety of engineering situations. Given these observations, 
the Director may wish to determine whether the Petitioner has met its burden to establish that its 
position meets any of the specialty occupation criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) with regard to 
the specific projects upon which the Beneficiaiy will work. 
Finally, the Petitioner provided an opinion letter froml ~ssociate Teaching Professor at 
~------~ University. The Director may wish to determine whether the letter contains 
sufficient analysis of the proffered position such that the opinion contained therein adds value to the 
instant matter. Service records show thatl ts opinion letter uses a template containing 
the same language and organization, as well as similar conclusions, as letters that have been submitted 
by other petitioners regarding different occupations. These similarities suggest thatl I 
was asked to confirm preconceived notions as to the required degree, not objectively assess the 
proffered position and opine on the minimum bachelor's degree required, if any. 
Because this case is affected by the new employer-employee policy guidance, we find it appropriate 
to remand the matter for the Director to consider the question anew and to adjudicate in the first 
instance any additional issues as may be necessary and appropriate. Accordingly, the following order 
shall be issued. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
3