U.S. Citizenship and Immigration Services

MATTER OF S-, LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 27, 2018

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a softw31rc development and consulting finn, seeks to temporarily employ the Beneficiary as a "systems analyst" under the H-1 B nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the Act) section IOI(a)(IS)(I-I)(i)(b), 8 U.S.C. § I I 0 I (a)( 15)(H)(i)(b ). The 1-1-1 B 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 Vermont Service Center denied the petition, concluding that the evidence of record docs not establish that the proffered position qualities as a specialty occupation.

On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the decision. Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), detlnes 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) largely restates this statutory definition, but adds a non­exhaustive list of fields of endeavor, In addition, the regulations provide that the proffered position must meet one of the following criteria to qualify as a specialty occupation:

(/) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

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(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternati ve, an employer may show that its particular position is so complex or unique that it can be pertormed 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.

8 C.F.R. § i t 4.2(h)(4)(iii)(A). We construe the tenn "degree" to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal Siam Cmp. v. Cherto{f, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requi rement in a speci tic specialty" as ::one that re lates directly to the duties and responsibilities of a particular posi tion"); Defensor v. Meissner, 20 I F.3d 384, 387 (5th Cir. 2000).

II. PROFFERED POSITION

In the 1-1-1 B petition, the Petitioner stated that the Beneficiary will serve as a "systems analyst" for its end-client' s project." The Petitioner also stated that the Beneficiary wi ll be located at the vendor's business offi ce at tn Pennsylvania, with poss ible occasional work from the Beneficiary's home in Pennsylvan ia.

In its letter of support, the Peti tioner provided eight job duties for the proffered position. In response to the Director's request for evidence (RFE), the Petitioner submitted a revised job description, along with the approximate percentage of time the Bene ficiary will spend on each duty. The Petitioner also submitted a letter from the vendor, which included the same job descri ption as provided by the Petitioner except lo r the percentage of time devoted to each duty.

Ill. ANALYSIS

For the reasons set out below, we have determined that the Petitioner has not demonstrated that the proffered position qualities as a specialty occupation.' Specifically, the record does not establish that the job dut ies require an educational background, or its equivalent, commensurate with a specialty occupation.2

1 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 2 The Peti tioner submi11ed documentat ion in suppon of the H- 1 B petition, incl uding evidence regarding the proffered position and its busi ness operations. Whi le we may not discuss every document submitted. we have reviewed and considered each one.

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A. Variances in Educational Requirements

First we lind that the Petitioner has provided inconsistent information regarding the mmtmum requirements for the proffered position. The table below summarizes the variances in the educational requirements.

Record of Proceedings Degree and Fields of Study Petitioner's Initial Letter of Bachelor's degree in computer science, engineering, mathematics, Support business administration, or a related field (page 4) Petitioner's RFE Response Bachelor's degree in computer science, engineering, information Letter technology, or a related field (page 8) Vendor Letter Bachelor's in computer science, soli ware engineering, or other

similar fields -

The Petitioner did not provide an explanation for the variances tn the requirements 3 These variances call into question the true requirements of the position.

B. Degree Requirement- General Degree

Next the Petitioner's claim that a bachelor's degree in business administration is sufticient for the proffered position is inadequate to establish that it qualifies as a specialty occupation. A petitioner must demonstrate that the proffered position requires a precise and specific course of study that relates directly and closely to the position in question. There must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a general degree, such as business administration, without further specification, does not establish the position as a specialty occupation. Cf Maller olJ'vli<:hael Hertz Assoc.1·., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, also does not establish eligibility''). Thus, while a general-purpose bachelor's degree may be a legitimate prerequisite for a particular position, requiring such .a degree, without more, will not justify a tinding that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 1474

We will now review the evidence of record to determine whether the protl'ered position qualifies as a specialty occupation pursuant to 8 C.F.R. § 214.2(h)( 4)(iii)(A).

~ The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the truth lies. Maller of Ho. 19 I&N Dec. 582. 591-92 (BIA 1988). >-~ A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty occupation. For example, an entry requirement of a bachelor's or higher degree in business administration with a concentration in a specific field, or a bachelor's or higher degree in business administration combined with relevant education, training. and/or experience may. in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated that the entry requirement is equivalent to a bachelor's or higher degree in a specific specialty that is directly related to the proffered position.

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C. First Criterion

We turn lirst to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(/), which requires that a baccalaureate or higher degree in a specilic specialty, or its equivalent, is normally the minimum requirement for entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's (DOL) Occupotionol Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. 5

On the LCA 6 submitted in support of the H-1 B petition, the Petitioner designated the proffered position under the occupational category "Computer Systems Analysts" corresponding to the Standard Occupational Classilication (SOC) code 15-1121. Thus, we reviewed the Handbook's subchapter entitled "How to Become a Computer Systems Analyst," which states, in pertinent part, that "[al bachelor's degree in a computer or information science field is common, although not always a requirement. Some !inns hire analysts with business or liberal arts degrees who have skills in information technology or computer programming."7 The Handbook also states that "[a]lthough many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise I h ··8 e sew ere:

The Handbook does not indicate that at least a bachelor's degree in a specific specialty, or its equivalent, is normally the minimum requirement for these positions. As noted, the Handbook states that a bachelor's degree in a computer-related field is "not always a requirement." Rather, the Handbook states that many computer systems analysts may only have liberal arts degrees and programming or technical experience, but does not further specify the amount of experience needed. It also notes that many analysts have technical degrees, but does not specify a degree level (e.g., associate's degree) for these degrees, and indicates that such a technical degree is not always a requirement. Thus, the Handbook reports that there arc several paths for entry into the occupation. 9

5 We do not. however, maintain that the Handbook is the exclusive source of relevant information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and responsibilities of a proffered position. and \Ve regularly review the Handbook on the duties and educational requirements of the wide varietv of occupations that it addresses. Nevertheless. to satisfy the first criterion. the burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its· particular position would normally have a minimum, specialty degree requirement, or its equivalent, for entry. (,The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of either the prevailing wage for the occupational classification in the ''area of employment" or the actual \vage paid by the employer to other employees with similar experience and qualifications who are performing the same services. See Mauer o[Simeio So/Ill ions. LLC. 26 I&N Dec. 542. 545-546 (AAO 20 15). 7 See Bureau of Labor Statistics. U.S. Dep't of Labor. Occupational Outlook Handbook. Computer Systems Analysts, on the Internet at http://www.bls.gov/ooh/ (last visited Apr. 25. 20 18). 8 /d. 9 In addition. the Handbook indicates that baccalaure8:te degrees in various fields (e.g. computer or information science, or liberal arts) may be adequate for entry into this occupation. In general, provided the specialties are closely related (e.g., computer and information science), a minimum of a bachelor's degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement ofsection214(i)(I)(B) of the Act. In such a case. the required ·'body of highly specialized knowledge" would essentially be the same. Since there must be a close

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In response to the RFE, the Petitioner referenced DOL's Occupational Information Network (O*NET) summary report for "Computer Systems Analysts" listed as SOC code 15-1121.00. The summary report provides general information regarding the occupation; however, it does not support the Petitioner's assertion regarding the educational requirements for these positions.

We will first focus on the Specific Vocational Preparation (SYP) rating. DOL designates the occupation "Computer Systems Analysts" as having an SVP 7 < 8. This indicates that the occupation requires "over 2 years up to and including 4 years" of training. While the SVP rating provides the total number of years of vocational preparation required tor a particular position, it is important to note that it does not describe how those years are to be divided among training, formal education, and experience - and it does not specify the particular type of degree, if any, that a

. . ld . 10 pOSition wou reqtnre.

Next we will address DOL's designation in the summary report of the occupation as a Job Zone Four. Similar to the SVP rating, the summary report does not indicate that any academic credentials for Job Zone Four occupations must be directly related to the duties performed.

Finally, we note that the summary report provides the educational requirements of "respondents," but does not account for I 00% of the "respondents." The respondents' positions within the occupation are not distinguished by career level (e.g., entry-level, mid-level, senior-level). Additionally, the graph in the summary report does not indicate that the "education level" tor the respondents must be in a specific specialty.

On appeal, the Petitioner cites to Residential Fincmce Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 20 12), for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained 'the eredentialing indicating possession of that knowledge."

We generally acknowledge that "[t]he knowledge and not the title of the degree is what is important." However, in general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l)(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since there must be a close correlation between the required "body of

correlation between the required .. body of highly specialized knowledge'' and the position. however. a minimum entry requirement of a degree in disparate fields (e.g .. computer science and liberal arts) would not meet the statutory requirement that the degree be "in 1he specific specialty (or its equivalent)," unless the Petitioner establishes how each tield is directly relaied lo the Julies and rcsponsibiliiies of the particular position such that the required body of highly special izcd know ledge is essentially an amalgamation of these di ffcrent specialties. Section 2 14(i)( 1 )(b) of the Act. The Petitioner has not done so here. 1° For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/help/ online/svp.

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highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in two disparate fields, such as philosophy and engineering, would not meet the statutory requirement that the degree be "in the specitic specialty (or its equivalent)," unless the Petitioner establishes how each field is directly related to the duties and responsibilities of the particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties. Section 214(i)( I )(B) of the Act (emphasis added). 11 I' or the aforementioned reasons, however, the Petitioner has not met its burden to establish that the particular position otfered in this matter requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in order to perform those tasks.

In any event, the Petitioner has furnished no evidence to establish that the facts of the instant petition are analogous to those in Residenrial Finance. 12 We also note that, in contrast to the broad preeedential authority of the case law of a United States circuit court, we are not bound to follow the published decision of a United States district court in matters arising even within the same district. See Maller of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration when it is properly before us, the analysis does not have to be followed as a matter of law. !d. It is also important to note that in a subsequent case reviewed in the same jurisdiction, the court agreed with our analysis of Residential Finance. See Health Carousel. LLC v. USCIS, No. I :13-CV-23, 2014 WL 29591 (S.D. Ohio 2014).

The Petitioner also cites Next Generation Tech .. Inc. v. Johnson, (S.D.N.Y. Sept. 29, 2017) as relevant here. This case arises out of a different jurisdiction than the instant matter. 13 Nevertheless, even if we considered the logic underlying the matter, we find that the Petitioner has not demonstrated that the proffered position is a specialty occupation.

First, the court in Next Generation Tech.. Inc. discussed our reading of the Handbook's discussion of the entry requirements for positions located within a different and separate occupational category "Computer Programmers'' rather than the "Computer Systems Analysts" category designated by the Petitioner in the LCA relating to this case. As noted above, the Handbook specifically states that "many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere."

11 The court in Residemia/ Finance did not eliminate the statutory ''bachelor's or higher degree in the specific specialty··

language imposed by Congress. Rather, it found that the petitioner in that case had satisfied the requirement. 12 The district judge's decision appears to have been based largely on the many factual errors made by the Director in the decision denying the petition. We further note that the Director's decision was not appealed to us. Based on the district court's findings and description of the record. if that matter had first been appealed through the available administrative process, we may very well have remanded the matter to the service center for a new decision for. many of the same reasons articulated by the district court if these errors could not have been remedied by us in our de novo review of the matter.

-13 In contrast to the broad precedential authority of the case law of a United States circuit court. we are not bound to follov .. ' the published decision of a United States district court in matters arising even within the same district. See Mauer ofK-S-, 20 I&N Dec. 715.719-20 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration when it is properly before us, the analysis does not have to be followed as a matter of law. !d.

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Moreover, the court in Nexl Genera/ion Tech.. Inc. relied in part on a U.S. Citizenship and Immigration (USCIS) policy memorandum regarding "Computer Programmers" indicating generally preferential treatment toward computer programmers, and "especially" toward companies in that particular petitioner's industry. However, USCIS rescinded the policy memorandum cited by the cou11 in Nexl Genera/ion Tech. Inc. 14

As above, the Petitioner has furnished no evidence to establish that the facts of the instant petition are analogous to those in Nexl Genera/ion Tech., Inc.

In the instant matter, the record lacks suflicient evidence to support a finding that the position, as described, is one for which a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for entry. For the aforementioned reasons, the Petitioner has not met its burden to establish that the particular position offered in this matter requires a bachelor's or higher degree in a specific specialty, or its equivalent, directly related to its duties in order to perform those tasks. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4 )(iii)(A)(/).

D. Second Criterion

The second criterion presents two, alternative prongs: 'The degree requirement is common to the industry in parallel positions among similar organizations or. in !he aliernalive, 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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong looks to the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific position.

1. First Prong

To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its equivalent) is common to the industry in parallel positions among similar organizations.

We generally consider the following sources of evidence to determine if there is such a common degree requirement: whether the Handbook reports that the industry requires a degree; whether the industry's professional association has made a degree a minimum entry requirement; and whether letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ and recruit only degreed individuals." See Shanli. Inc. v.· Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 1999) (quoting Hird/Biaker Corp. v. Sava. 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality of a degree. requirement)).

1'1 ,See USCIS Policy Memorandum PM-602-0142, Rescission of the December 22, 2000 "Guidance memo on HIB

compwer related positions .. (Mar. 3 I, 20 17), hltps://www. uscis.gov/sites/defauii/fi les/files/naiivedocumenis/PM-6002-0 142-H I B CompulerRelaiedPosiiions Recission.pdf.

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As previously discussed, the Petitioner has not established that its proffered position is one for which the Handbook, or other authoritative source, reports a requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the previous discussion on the matter. Also, there arc no submissions from the industry's professional association indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did not submit any letters or affidavits from similar firms or individuals in the Petitioner's industry attesting that such firms "routinely employ and recruit only degreed individuals." Nor is there any other evidence relevant to this prong. Thus, based upon a complete review of the record of proceedings, we lind that the Petitioner has not satisfied the first alternative prong of 8 C.F.R. § 214.2(h)( 4 )(iii)(A)(2).

2. Second Prong

We will next consider the second alternative prong of 8 C.F.R. 9 214.2(h)(4)(iii)(A)(2), which is satisfied if the Petitioner shows that its particular position is so complex or unique that it can be performed only by an individual with at least a bachelor's degree in a specific specialty, or its equivalent.

ln response to the RFE, the Petitioner submitted a list of job duties and the percentage of time the Beneficiary would devote to certain tasks. However, the record does not demonstrate that the necessary knowledge for the proffered position is attained through an established curriculum of particular courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent. While a few related courses may be beneficial in performing certain duties of the position, the Petitioner has not demonstrated how an established curriculum of such courses leading to a baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered position. As previously noted, the Petitioner claimed that a general d~gree is sut1icient for the proffered position.

The Petitioner claims that the Beneficiary is well-qualified for the postl!on, and references his qualifications. However, the test to establish a position as a specialty occupation is not the education or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's degree in a specific specialty, or its equivalent. The Petitioner did not surticiently develop relative complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so complex or unique that only a specifically degreed individual could perform them. Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. § 214.2(h)( 4 )(iii)(A)(2).

E. Third Criterion

The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position.

The record must establish that a petitioner's stated degree requirement is not a matter of preference tor high-caliber candidates but is necessitated instead by performance requirements of the position.

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See Defensor, 201 F.3d at 387-88. Were we limited solely to reviewing a petitioner's claimed self­imposed requirements, an organization could bring any individual with a bachelor's degree to the United States to perform any occupation as long as the petitioning entity created a token degree requirement. !d. Evidence provided in support of this criterion may include, but is not limited to, documentation regarding the Petitioner's past recruitment and hiring practices, as well as information regarding employees who previously held the position.

In support of this criterion, the Petitioner provides a list of its employees in the systems analyst position, along with copies of their H-1 B approvals, LCAs, and academic credentials. However. the record lacks evidence establishing that these individuals were hired into systems analyst positions that are the same or similar to the one offered to the Beneficiary. Based on a review of the LCAs that the Petitioner provided, it appears that several of the individuals are paid a significantly higher salary than the one offered to the Beneficiary. For instance, two individuals are paid over $40,000 more than the Beneficiary's offered salary of$60,258 per year. Thus, this strongly suggests that these individuals are employed in a more senior position than the proffered position. The Petitioner did not provide an explanation for the variances in the wages.';

Further, the Petitioner did not provide the job duties and day-to-day responsibilities for these individuals. The Petitioner also did not submit any information regarding the complexity of the job duties, supervisory duties (if any), independent judgment required or the amount of supervision received. Accordingly, it is unclear whether the duties and responsibilities of these individuals are the same or similar to the proffered position.

The Petitioner did not provide sufficient documentary evidence to support the assertion that it normally requires at least a bachelor's degree in a specific specialty, or its equivalent, directly related to the duties of the position. Therefore, the Petitioner has not satisfied the third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A).

F. Fourth Criterion

The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree in a specitic specialty, or its equivalent.

In the instant case, relative specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of the proffered position. While the position may require that the Beneficiary possess some skills and technical knowledge in order to perfom1 these duties, the Petitioner has not sufficiently explained how these tasks require the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher

15 Again, the Petitioner must resolve this inconsistency in the record with independent. objective evidence pointing to where the truth lies. Hu. 191&N Dec. at 591-92.

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degree in the specific specialty (or its equivalent) as a minimum for entry into the occupat ion. The record does not include sufficient probative evidence that the duties require more than technical proficiency in the field . Thus, the Petitioner has not demonstrated that its proffered position is one with duties sufficiently spec iali zed and complex to sati sfy 8 C.F.R. § 214.2(h)( 4)(iii)(A)( .:/).

Because the Petitioner has not satisfied one o f the criteria at 8 C.F.R. § 2 14.2(h)(4)(i ii )(A), it has not demonstrated that the protTerecl pos ition qualities as a specialty occupation.

IV. EMPLOYER-EMPLOYEE

As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not full y address other issues evident in the record. That said, we wish to identify an add itional issue to inform the Petitioner that this matter should be addressed in any future proceedings. 16

Specifically, we find that the record of proceedings lacks sufficient documentation evidencing what exactly the Benefi ciary would do for the period of time requested or where exactly and for whom the Beneficiary would be providing services. T he Petitioner provided a Master Service Agreement between itself and the vendor, executed in February 2014. The agreement states that " [t]he term o f this Agreement is for one ( 1) year, commencing on the Effective Date retlected above. The end o f such term shall be the "Expiration Date". Each Task Order shall be for the period set fcmh herein:" In addition, the Petitioner submitted a Task Order between itself and the vendor, executed in March 2017, which sta tes "Start Date: 08/0 1/2016-extension granted 03/01/201 T' and "[t]his task order sha ll. .. be tor a mtmmum of peri od of one ( 1) year and is renewable by the agreement of all parties."

The Petitioner also submitted two letters from the vendor. The letters state that the project is extendable and that it may last three years or more. However, the vendor' s statement is not corroborated by documentation indicating that an ongoing project exists that will generate employment for the Beneficiary's services until September 2020.

The Petitioner requested the Beneficiary be granted H-1 B classification li·om October 2017 to September 2020. However, the record of proceedings does not establi sh that the

project will continue through September 2020 - and it is the onl y proj ect claimed by the Petitioner in this filing. Thus, without more, the record does not demonstrate that the Petitioner will have sufficient work and that it will maintain an employer-employee relationship tor the duration of the validity of the requested period.

A petition must be tiled for non-speculative work tor the Benefici ary, for the entire period requested, that existed as o f the time of the petition's tiling. Our regulations atlirm atively require a petitioner

16 In reviewing a matter de tujvo, we may identify additional issues not addressed in the Director's decis ion. See Spencer Enterprises. Inc. ,._ United States, 229 F. Supp. 2d 1025, 1043 (E. D. Cal. 200 I), affd. 345 F.3d 683 (9th Cir. 2003) ('The AAO may deny an application or petition on a ground not identified by the Service Center.").

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to establish eligibility for the benefit it is seeking at the time the petition is tiled. See 8 C.F.R. 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility or alter the Petitioner or Beneficiary becomes eligible under a new set of facts. See Mol/er of Michelin Tire Corp., 17 l&N Dec. 248.

V. CONCLUSION

For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought.

ORDER: The appeal is dismissed.

Cite as ivfotter ofS-. LLC, lD# 1208267 (AAO Apr. 27, 2018)