dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUN. 14, 2023 In Re : 26589135 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner 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. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S . employer to 
temporarily employ a qualified nonimmigrant 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 California Service Center denied the petition , concluding that the record did not 
establish that the petition was filed with a corresponding labor condition application and further that 
the Petitioner's proffered position was not a specialty occupation . The matter is now before us on 
appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. THE PROCEEDINGS BELOW 
The Petitioner is offering the Beneficiary the position of consultant. The peht10n included a 
Department of Labor (DOL) ETA Form 9035 and 9035E Labor Condition Application for 
Nonimmigrant Workers (LCA) certified for a position located within the "Computer Systems 
Analysts" occupational category corresponding to the Petitioner's self-categorization within the 
Standard Occupational Classification (SOC) Occupational Information Network (O*NET) code 15-
1121.00 .1 The Petitioner attested they are not an H-lB dependent employer in the LCA. According 
to the Petitioner, the proffered job requires a minimum of a bachelor's degree in computer engineering , 
user experience design, information technology, or a related field. 
1 After the filing of the petition , the Department of Labor 's Bureau of Labor Statistics advised that the "Computer Systems 
Analysts " entry at 15-1121.00 was no longer in use and to use the "Computer Systems Analysts " entry at 15-1211.00 . The 
Petitioner 's proffered job description aligns with the new category . 
The Director issued a request for evidence (RFE) advising the Petitioner that they noted concerns with 
the accompanying LCA such that it may not correspond to their proffered job. The Director queried 
whether the SOC occupational category the Petitioner selected related to the duties of the Petitioner's 
proffered job. And the Director questioned whether the Petitioner was an H-lB dependent employer 
contrary to what the Form 1-129 and LCA reflected. Finally, the Director requested additional 
evidence to evaluate if the Petitioner's proffered position was a specialty occupation. 
In their RFE response, the Petitioner provided an expanded job description with percentages of time 
spent on each duty, an advisory o:inion from I Iprofessor of computer and 
information sciences) !University, a copy of the U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (the Handbook) entry for "Computer 
Systems Analysts," a copy of the DOL Occupational Information Network (O*NET) Summary 
Report, and USCIS' Fiscal Year 2014 Annual Report to Congress on the "Characteristics of H-1 B 
Specialty Occupation Workers" to support the specialty occupation nature of the proffered consultant 
position. The Petitioner also submitted a chart in its response which compared the duties of the 
proffered job to the SOC category they selected on the LCA. And the Petitioner's response stated that 
the Petitioner was not a dependent employer but did not provide any of the Director's requested 
evidence nor any explanation why evidence was not available in support. The Director denied the 
petition because the Petitioner did not establish that they were not an H-1 B dependent employer and 
the proffered job was not a specialty occupation. 
II. THE DIRECTOR'S DECISION 
We conclude that the Petitioner's proffered position of consultant is a specialty occupation. The 
Handbook entry for "Computer Systems Analysts" reflects that a "bachelor's degree in computer and 
information technology or a related field" is "typically" the minimum requirement for entry into the 
occupation. See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, 
Computer Systems Analysts (Sept. 8, 2022), https://www.bls.gov/ooh/computer-and-information­
technology/computer-systems-analysts.htm. The fields of study identified by the Handbook are 
closely related such that they constitute a common specialty required to perform the duties of positions 
located within this occupational category. So the evidence in the record established that the 
Petitioner's proffered consultant position qualifies for classification as a specialty occupation as the 
term is defined at section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii) as it requires the theoretical 
and practical application of a body of highly specialized knowledge and the attainment of a bachelor's 
or higher degree in the specific specialty or its equivalent. And the record established that a 
baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into 
the position, and therefore also satisfies 8 C.F.R. 214.2(h)(4)(iii)(A)(l). So we will withdraw the 
Director's decision in part and conclude that the Petitioner's proffered position is a specialty 
occupation. And, although the Director made no specific conclusions in their decision, we also 
conclude that the Petitioner's evidence supports their contention that the occupational classification 
listed in the LCA corresponds to the proffered job. But the LCA is nevertheless discordant with the 
petition and we must dismiss the appeal for the below reasons. 
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III. NON-CORRESPONDING LABOR CONDITION APPLICATION 
A Petitioner seeking to file an H-lB petition must accompany that petition with a certified LCA. 
Section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l); 20 C.F.R. § 655.73 l(a). In addition, a petitioner 
must establish eligibility at the time of filing the petition and must continue to be eligible through 
adjudication. 8 C.F.R. § 103.2(b)(1 ). A certified LCA memorializes the attestations a petitioner makes 
regarding the employment of the noncitizen in H-1 B status. 2 
Whilst DOL is responsible for certifying that the Petitioner has made the required LCA attestations, 
United States Citizenship and Immigration Services (USCIS) evaluates whether the submitted LCA 
corresponds with the Petitioner's H-lB petition. See ITServe Alliance, Inc. v. DHS, 590 F. Supp. 3d 
27, 40 (D.D.C. 2022) (noting that 20 C.F.R. § 655.705 requires USCIS "to check that the [H-lB] 
petition matches the LCA"); see also United States v. Narang, No. 19-4850, 2021 WL 3484683, at *1 
(4th Cir. Aug. 9, 202l)(per curiam)("[USCIS] adjudicators look for whether [the] employment [listed 
in the H-lB petition] will conform to the wage and location specifications in the LCA"). USCIS does 
not supplant DOL's responsibility with respect to wage determinations when it evaluates the 
information as contained in the LCA to ensure it "corresponds with" the content of the H-1 B petition. 
See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA which 
corresponds with the petition .... "). See also Matter of Simeio Solutions, 26 I&N Dec. 542, 546 n.6 
(AAO 2015). 
Section 212(n)(3)(A) of the Act, 8 U.S.C. § 1182(n)(3)(A), defines an H-lB dependent employer as 
an employer that: 
(i)(I) has 25 or fewer foll-time equivalent employees who are employed in the United States; 
and (II) employs more than 7 H-lB nonimmigrants; 
(ii)(I) has at least 26 but not more than 50 foll-time equivalent employees who are employed 
in the United States; and (II) employs more than 12 H-lB nonimmigrants; or 
(iii)(I) has at least 51 folltime equivalent employees who are employed in the United States; 
and (II) employs H-1 B nonimmigrants in a number that is equal to at least 15 percent of the 
number of such foll-time equivalent employees. 
An LCA which does not accurately indicate the employer's H-lB dependency status cannot be used 
to support a H-lB petition. 20 C.F.R. § 655.736(g)(l). 
The Petitioner indicated in the petition and on the accompanying certified LCA that they had 30,000 
employees and were not an H-lB dependent employer. As USCIS records reflected that the Petitioner 
had received approvals for over 10,000 H-lB petitions in the three years prior to the filing of the 
petitioner, the Director questioned whether the Petitioner was an H-lB dependent employer. 
2 See 20 C.F.R. ~ 655.734(d)(l)-(6). 
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The Director notified the Petitioner of their concerns with the Petitioner's dependency on H-1 B 
employees and issued an RFE. The Director may request additional evidence when they evaluate 
eligibility for immigration benefits. 8 C.F.R. § 103.2(b)(8). The Director suggested that, if the 
Petitioner was not an H-lB dependent employer, they submit evidence which could include but was 
not limited to: 
• A statement explaining how many U.S. and H-lB employees the Petitioner employed at the 
time the petition was filed; 
• Copies of the Petitioner's Forms 941, Employer's Quarterly Federal Tax Returns, for the 
quarter immediately prior to the filing date of the petition and the quarter the Petitioner filed 
the petition; or 
• The Petitioner's payroll summaries showing how many workers the Petitioner paid wages to 
for the pay period immediately prior to the filing date of the petition and the pay period that 
the Petitioner filed the petition. 
The Petitioner stated in their response that they were a member of an unidentified group of employers 
required to be treated as a "single employer" under the Internal Revenue Code (IRC) at 26 U.S.C. § 
414(b), (c), (m), or (o). They stated that the regulations at 20 C.F.R. § 655.736(b) state that an 
employer treated as a "single employer" for purposes of the IRC is also treated as a "single employer" 
for purposes of determining H-1 B dependency. The Petitioner contends that application of the "single 
employer" rule reflects that they have 76,000 employees. They also state that they have 6,700 
employees in H-lB status, which is below the 15% threshold set in the regulations to determine 
whether an employer is H-lB dependent. 
We acknowledge the Petitioner's assertion of their treatment as a "single employer" under the relevant 
section of the IRC. But their assertion is not supported by applicable evidence in the record. Aside 
from their statement contained in their larger response to the RFE, the Petitioner provided no 
documentary evidence in support. A petitioner's burden of proof comprises both the initial burden of 
production, as well as the ultimate burden of persuasion. Matter ofY-B-, 21 I&N Dec. 1136, 1142 n.3 
(BIA, 1998). A petitioner must satisfy the burden of persuasion, meaning they must establish the 
degree to which their arguments and evidence should persuade or convince USCIS that the requisite 
eligibility parameters have been met. Dir., Office of Workers' Comp. Programs, Dep 't of Labor v. 
Greenwich Collieries, 512 U.S. 267,274 (1994). The standard of proof in immigration proceedings 
is a preponderance of the evidence. Chawathe, 25 I&N Dec. at 375-76. The Petitioner did not provide 
the quarterly tax returns or the payroll summaries the Director requested. And they did not give any 
reasons for why they did not or could not produce additional documentation to support their statement. 
Nor did they provide any alternative documentation or evidence in support. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof. Matter 
of Sojfici, 22 I&N Dec. 158, 156 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Without material, relevant, or probative evidence a petitioner 
generally cannot meet their burden of proof to establish eligibility for an immigration benefit by a 
preponderance of the evidence. 
On appeal the Petitioner submits new evidence that it could have submitted with their RFE response 
in the form of a copy of the relevant sections of the IRC describing an "affiliated service group," a 
letter from the Internal Revenue Service (IRS) purporting to demonstrate that the Petitioner is part of 
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a group that is considered an "affiliated service group" and so a "single employer" under the IRC, a 
generic list of companies the Petitioner is purportedly affiliated with, a USCIS Form I-797, Approval 
Notice for a L-1 blanket petition with a list of1 Iaffiliated entities, an organizational 
chart, and an affidavit from the Petitioner's lead immigration specialist. 3 
The new evidence the Petitioner provides for the first time on appeal is not material, probative, or 
relevant to the Petitioner's H-lB dependency status. The copy of the relevant sections of the IRC does 
not reliably indicate the specific section or basis contained at 26 U.S.C. § 4 l 4(b ), ( c ), (m), or ( o) under 
which the Petitioner claims their status as a "single employer." The Petitioner's lead immigration 
specialist provides an affidavit at appeal which states that the Petitioner is a "single employer" under 
26 U.S.C. § 414(m), or employees of an "affiliated service group." The letter states the "correct" 
number of employees is 87,000 based on their inclusion in the "affiliated service group" and also states 
the total number of employees per their records is 6,700, concluding that they are therefore under the 
15% threshold demarcating H-lB dependent status. But the record does not contain any material, 
relevant, or probative documentation of any of the factors contained in the IRC to indicate an affiliated 
service group such as ownership, shareholding amounts, or whether there is the performance of 
services by.__________________ ____.Consequently, the figures and information 
contained in the Petitioner's lead immigration specialist's affidavit is uncorroborated. And the letter 
from the IRS' director of EP Ruling & Agreements that the Petitioner purports demonstrates the 
I I group ofcompanies is an "affiliated service group" contains points of concern. SpTfically, 
the letter is not addressed to the petitioner but tq Ithe Petitioner in this matter is 
I IAnd the letter refers to a favorable determination applying to the status of 1
Ipension plan under the IRC but does not reflect whether the Petitioner or any other entity has 
any connection to the stated pension benefit or is in an "affiliated service group" under the IRC with 
I I. The copy of the single employer list supposedly maintained in the Petitioner's master 
public access file is simply that - a list of companies. There is no additional information on the list 
provided or any other source which would support the Petitioner's contention that the list comprises a 
group of companies that are a "single employer" under the any of the relevant sections of the IRC or 
what their ownership structure, shareholder, partnership status, or service to one another is. The same 
is true for the list of affiliated entities accompanying a Form I-797 L-1 Blanket Petition Approval 
Notice approved on behalf ofi IThe list of affiliated entities contains a list of U.S. and 
internationally based companies affiliated withl land the Petitioner is contained in this list. 
But there is no additional information or documentation provided that would indicate whether the 
affiliated entities on the list based in the United States would constitute a "single employer" under any 
of the relevant sections of the IRC. And one cannot determine from this list alone whether the 
qualifying relationship shared by the entities on this list would be sufficient to constitute a relationship 
supporting a "single employer" designation under the IRC. Whilst the Petitioner provides an 
3 The Petitioner was notified of the requirement to submit evidence of their H-IB dependency status in the Director's RFE 
and given a reasonable opportunity to provide the evidence. But the Petitioner did not provide any evidence or 
documentation with the RFE response. Multiple precedent decisions address whether newly submitted evidence on appeal 
will be considered. See Matter o(Obaigbena, 19 I&N Dec. 533,537 (BIA 1988); Matter ofSoriano, 19 I&N Dec. 764, 
766 (BIA 1988); see also Matter ofJimenez, 21 I&N Dec. 567,570 n.2 (BIA 1996). As stated above, the Director requested 
relevant evidence at the time of the RFE response that the Petitioner provides for the first time on appeal. Nevertheless, 
we have chosen to exercise our discretion in this matter and evaluate the new information, documentation, and explanation 
provided by the Petitioner for the first time on appeal. But we have concluded that it is not material, relevant or probative 
to the threshold question of whether the Petitioner is an H-IB dependent employer. 
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organizational chart purporting to reflect the relationship between the Petitioner and other entities 
affiliated and related tol Ithere is no evidence present in the record that would support 
these relationships between these companies and how the relation of these companies to each another 
establishes their status as an "single employer" under any relevant section of the IRC. And if it cannot 
be determined under what basis the Petitioner is a "single employer" under the IRC, we cannot 
conclude that the Petitioner correctly identified themselves as an employer who is not H-1 B dependent. 
IV. CONCLUSION 
As the certified LCA in the record identified the Petitioner as an employer that is not H-1 B dependent, 
and the Petitioner has not established by a preponderance of the evidence that they are not H-1B 
dependent, the LCA is not in correspondence with the proffered position. An H-1B petition cannot be 
approved without a corresponding LCA. See section 212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 
So the petition is unapprovable as filed. 
ORDER: The appeal is dismissed. 
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