dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 17570717 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 25, 2021 
The Petitioner, a wholesale electronics company, seeks to temporarily employ the Beneficiary as a 
"computer network support specialist" under the H-1B nonimmigrant classification for specialty 
occupations. 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-1B 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 California Service Center denied the petition , concluding that the record did not 
establish that (1) the labor condition application (LCA) was certified prior to filing the petition, and 
(2) the proffered position is a specialty occupation. On appeal, the Petitioner submits a brief and 
asserts that the Director erred by denying the petition . The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 
(AAO 2010). We review the questions in this matter de nova. See Matter of Christo 's Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) . .. "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines 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 
non-exhaustive 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, 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; 
(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. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position.1 
As part of the H-1B process, a petitioner is required to obtain a certified LCA from the Department of 
Labor (DOL) prior to filing the H-1B petition with U.S. Citizenship and Immigration Services. Section 
212(n) of the Act, 8 U.S.C. § 1182(n); 8 C.F.R. § 214.2(h)(4)(i)(B)(1). Specifically, the regulation at 
8 C.F.R. § 214.2(h)(4)(i)(B)(1) states "[b]efore filing a petition for H-1B classification in a specialty 
occupation, the petitioner shall obtain a certification from the Department of Labor that it has filed a 
labor condition application in the occupational specialty in which the alien(s) will be employed" 
(emphasis added). 
II. ANALYSIS 
The Petitioner filed the instant petition on June 19, 2020 with an uncertified LCA. The Director issued 
a request for evidence (RFE) and requested, in part, that the Petitioner provide an LCA certified prior 
to the filing of the petition. In response, the Petitioner provided an LCA certified on June 25, 2020 
and an affidavit from Counsel explaining why the LCA was not certified at the time of filing. Counsel 
stated that due to miscommunication and a mix-up of the petition's submission dates, the petition was 
submitted without a certified LCA and requested that the Petitioner not be held accountable. 
Though we acknowledge the affidavit's explanation, the aforementioned authorities clearly state that 
the LCA must be certified before filing an H-1B petition, and the Petitioner did not comply. As the record 
lacks an LCA certified prior to the filing of the petition, the Director appropriately denied the petition. 
The appeal must therefore be dismissed, and the petition denied, on that basis alone. 
1 See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a specific 
specialty" as "one that relates directly to the duties and responsibilities of a paiiicular position"). 
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Even if the Petitioner provided an LCA certified prior the petition's filing, we would still conclude 
that the Petitioner had not established that the proffered position is a specialty occupation. Since the 
Petitioner's LCA deficiency is irremediable, we need not and will not address the specialty-occupation 
issue at length, except to note that the Petitioner has not satisfied at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). The Petitioner should be prepared to address any specialty-occupation issues in 
any future filings. 
Moreover, we observe discrepancies in the record that undermine the overall credibility of this petition. 
In their initial support letter, the Petitioner stated the proffered position requires a "master's degree in 
information systems." However, the Petitioner's president claims the duties of the position can be 
performed by either a person "who has attained at least a bachelor's degree and 3 years' experience or 
a master's degree in the field of computer science or information technology." Lastly, the letter from 
I I provides another set of educational requirements: a "minimum of a 
bachelor's degree, or higher, in [c]omputer [s]cience, [i]nformation [t]echnology, or closely related 
fields." We also note the Petitioner requires the position to speak Arabic, but does mention this 
requirement in their support letter. These inconsistencies raise questions regarding the position's 
actual nature and its actual minimum requirements. The Petitioner must resolve these inconsistencies 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 
591-92 {BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. The 
Petitioner should also address these inconsistencies in any future filings. 
In sum, the Petitioner has not established that the LCA was certified prior to the filing of the petition. 
For this reason alone, the petition cannot be approved. In addition, the proffered position does not 
appear to satisfy any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), thus it has not demonstrated that the 
proffered position qualifies as a specialty occupation. Finally, the nature and requirements of the 
proffered petition are unclear due to the inconsistent requirements provided by the Petitioner. 
Ill. CONCLUSION 
Accordingly, the appeal will be dismissed for the above stated reasons. 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. 
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