remanded H-1B Case: Structural Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 147 50546 Office: CALIFORNIA SERVICE CENTER Date: kw 14 ZUUb 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] S)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(] 5)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Attached is a reopening of the petition and a request for evidence relating to the above proceeding. Pursuant 
to federal regulations at 8 C.F.R. 3 103.2(b)(8), you are allowed 12 weeks from the date of this notice to 
respond to the above address. This same regulatory section states that additional time may not be granted. 
All evidence submitted in response to a request for evidence must be submitted at one time. The submission 
of only some of the requested evidence will be considered a request for a decision based on the record. 
8 C.F.R. tj 103.2(b)(11). 
Failure to respond to this notice will be considered to be an abandonment of the petition. 
 8 C.F.R. 
5 1 03.2(b)(I 3). 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 03 147 50546 
Reopening and Request for Evidence 
Page 2 
DISCUSSION: On April 10, 2003, the petitioner filed a Form 1-129 seeking to employ the beneficiary, who 
has been previously approved for H-1B status based on a petition filed by another employer, as a structural 
steel detailer pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b). The director of the California Service Center denied the petition and the 
petitioner appealed the decision to the Administrative Appeals Office (AAO). The AAO dismissed the appeal 
on April 28, 2006. Subsequently, the petitioner and the beneficiary filed a complaint in the U.S. District 
Court for the Central District of California seeking declaratory relief requiring Citizenship and Immigration 
Services (CIS) to approve the beneficiary's H-1B petition. Global Fabricators and Israel G. Cruz v. Albert0 
Gonzales and Michael Chertofi et al., CV-06-3959 AHM (JWJx) (filed June 23, 2006). Upon review, the 
AAO, on its own motion, reopens the proceeding to reconsider its previous decision pursuant to 8 C.F.R. 
fj 103.5(a)(5)(ii). Accordingly, it issues this notice and request for evidence. 
In reviewing the record of proceeding, the AAO has identified several areas in which additional information is 
required for the petition to be given further consideration. The purpose of this letter is to advise the petitioner 
of the issues that must be addressed and to afford it an opportunity to provide additional information prior to 
the AAO's issuance of a new decision. 
Prior Avvroval of H- 1 B Status 
On appeal, counsel indicates that CIS previously approved an H-1B petition filed on behalf of the beneficiary 
by the petitioner for the same employment described in the instant petition and that the beneficiary has been 
working for the petitioner for the past three years in this capacity. He contends that in filing the instant 
petition the petitioner simply seeks to extend its employment of the beneficiary and that CIS' denial of the 
petition violates its own regulations and policy regarding the readjudication of previously approved H-1B 
petitions where there has been no material change in the underlying facts. 
1 
The AAO finds the record to contain a copy of a Form I-797B approval notice indicating that the beneficiary 
was previously awarded H-IB status based on a petition filed by another employer. It offers no evidence to 
support counsel's claim that the petitioner in the instant case previously filed a Form 1-129 for the beneficiary. 
Neither does a review of CIS records indicate that the beneficiary was previously employed by the petitioner 
in H-1B status. Accordingly, the AAO asks that the petitioner submit proof of its previous H-1B employment 
of the beneficiary. 
Nature of the Position 
Although counsel contends that the proffered position is similar to that of an architect, the petitioner entered 
the occupational code of "017" on the certified Labor Condition Application (LCA) submitted at the time of 
' Memorandum from William R. Yates, Associate Director for Operations, Citizenship and Immigration 
Services, The SigniJicance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a 
Subsequent Determination Regarding Eligibility for Extension of Petition Validity, HQOPRD 7211 1.3 (April 
23,2004). 
WAC 03 147 50546 
Reopening and Request for Evidence 
Page 3 
filing. The "017" designation is the occupational code for drafters; the code for architectural occupations is 
"001." See Appendix 1 to Form ETA 9035CP, Labor Condition Application, Three-Digit Occupational 
Groups. In response to the director's request for evidence, the petitioner submitted newspaper listings for the 
proffered position, which advertise it as a civil engineering position, and four Internet job announcements for 
draftsmen and mechanical engineers, describing these positions as similar to the offered employment. The 
occupational code used on the LCA, and the newspaper and Internet listings undermine the petitioner's 
contention that it is seeking the beneficiary's services to perform the duties of an architect. The AAO asks 
that the petitioner resolve these inconsistencies in its characterization of the offered employment. 
Duties of the Position 
On appeal, counsel states that the proffered position of senior structural steel detailer is closely aligned to the 
occupation of architect because "it primarily involves pre-design and design services in all phases of 
development, from the initial discussion through the entire project." While the record does not indicate that 
the petitioner, either at the time of filing or in response to the director's request for evidence, has listed any 
pre-design or design services among the duties that would be performed by the beneficiary, the AAO, 
nevertheless, asks that the petitioner provide a description of the pre-design and design services referenced by 
counsel on appeal. In that description, the petitioner should also identify the type of "parts of machines or 
structures" for which, counsel states, the beneficiary would "draft detailed drawings . . . from rough or general 
design drawings." 
The AAO asks that the petitioner provide a description of the architectural services it provides to the 
contractors that make up its primary customer base, as well as its other clients. Further, as counsel indicates 
that the beneficiary currently performs pre-design and design services for the petitioner, the petitioner is 
requested to provide a description of some of the specific pre-design and design assignments completed by 
the beneficiary.2 
Petitioner's Hiring Practices 
On appeal, counsel states that the petitioner requires all structural steel detailers in its engineering department 
to hold at least a baccalaureate degree and that all members of its entire engineering staff possess four-year 
college degrees. As proof of these claims, counsel submits copies of documents he states are related to two of 
the petitioner's detailers - an "individual experience record" or resume which indicates that the person named 
holds a degree in civil engineering from the Far Eastern University in The Philippines, and a diploma in civil 
engineering and academic transcripts for another individual, issued by the National University in The 
Philippines. He also notes that the petitioner's prior employment of the beneficiary serves as proof of its 
degree requirement. However, as indicated in the AAO's dismissal of the instant petition, this information is 
insufficient to establish the beneficiary's normal hiring practices. Moreover, the newspaper and online 
Pre-design and design services of the type indicated by counsel are not normally provided by steel 
fabrication businesses, as fabricators typically enter the building process only after a building contract has 
been awarded. Pre-design and design activities, as well as the preparation of construction documents, occur 
prior to the award of such a contract. 
WAC 03 147 50546 
Reopening and Request for Evidence 
Page 4 
advertisements for the proffered position, as well as the position contract, which describe the duties and 
competencies of a senior detailer, do not support the petitioner's claims regarding its normal hiring practices 
for the position. None of this documentation indicates that applicants for a senior detailer position must have 
at least a baccalaureate degree in architecture, engineering, mathematics or computer design to qualify for 
employment with the petitioner. 
If the petitioner is to demonstrate that it employs only degreed individuals in its engineering department, the 
AAO asks for documentation that establishes the number, identities and specific responsibilities of the 
employees in that department and the degrees held by each. Documentation of the employees' degrees should 
include evidence that establishes them as the equivalent of at least a U.S. baccalaureate degree in a field 
directly related to their employment. 
Pursuant to federal regulations at 8 C.F.R. $ 103.2(b)(8), the petitioner is allowed 12 weeks from the date of 
this notice to respond to the AAO and additional time may not be granted. All evidence submitted in 
response to a request for evidence must be submitted at one time. The submission of only some of the 
requested evidence will be considered a request for a decision based on the record. 8 C.F.R. $ 103.2(b)(ll). 
If the petitioner's response does not establish that the petition was approvable at the time it was filed, then the 
petition cannot be approved. 8 C.F.R. $ 103.2(b)(12). 
After the 12-week period, the AAO will prepare and issue a new appellate decision, taking into account all of 
the evidence of the record, including the new and additional evidence submitted in response to this notice.