dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "Software 
Engineer" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act)§ 10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b). The H-IB 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, California Service Center, denied the petltton. The Director concluded that the 
evidence of record is insufficient to establish that the proffered position qualifies as a specialty 
occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusion is erroneous. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTYOCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), 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. 
Matter of N-, Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(!)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to quality as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the mtmmum 
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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
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Matter of N-, Inc. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii) , U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. 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 particular 
position"). Applying this standard, US CIS regularly approves H -1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants , 
college professors, and other such occupations. These professions, for which ·petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations , are factors to be considered. USCIS must examine . the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually · requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation , as required by the Act 
B. The Proffered Position 
On the Form J-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 
22-employee company that engages .in the business of "Software Services and Application 
Development for proprietary The Petitioner seeks .to employ the Beneficiary as a 
"software engineer" from October 1, 2015, to July 29, 2018, at a salary of$62,000 per year. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1131, "Computer Programmers," from the Occupational Information Network (O*NET). The 
LCA further states that the proffered position is a Level I, entry-level , position . 
. In its cover letter, the Petitioner explained that it "has built a multi channel digital ordering 
(Software as a Service - SaaS) platform - .. . [that] is an online food ordering 
service." The Petitioner stated that the Beneficiary "will be designated to primarily work at the 
[Petitioner's] business premises in CA on [its] internal software product suite -
·The Petitioner then described the duties of the proffered position as follows 
(verbatim): 
3 
(b)(6)
. 
Matter of N-, Inc. 
(The Beneficiary) will be responsible for evaluating customers 
operational feasibility by problem definition, requirements analy sis, solution 
development , and proposed solutions. His duties will include documenting solutions 
by developing flowcharts, layouts, diagrams, charts, code comments and clear code 
for Preparing and installing solutions by determining and designing 
system specifications, standards, and programming based on 
custome rs; Improvin g customer operations by conducting systems 
analysis , recommending changes in policies and procedure·s and collecting, analyzing , 
and summarizing development and service issues of old and new 
customers. 
In response to the Director's request for evidence (RFE), the Petitioner elaborated upon the duties of 
the proffered position, as well as the time spent on each duty, as follows: 
Tasks Difficulty % Time 
Level to be 
Spent 
1. Develops · informati on systems by designing, developing, and 5 25% 
installing software solutions. Determines operational feasibility by 
evaluating analysis, problem definition, requirements, solution 
development , and proposed solutions . Documents and ·demonstrates 
solutions by developing documentation , flowcharts , layouts, diagrams , 
charts, code comments and dear code. 
2. Prepares and installs solutions by determining and designing system . 4 15% 
specifications, standards, and programming. Improves operations by 
conducting systems analysis; recommending changes in policies and 
procedures . 
3. Obtains and licenses softwa re by obtaining required information from 4 15% 
vendors; recommending purchases; testing and approv ing R_roducts. · 
4. Updates job knowledge by studying state-of-the-art development 4 15% 
tools, programming techniques, . and computing equipment; 
participatin g . in educatio nal opportun ities; reading professional 
publications; maintaining personal networks; participating m 
professional organizations. 
5. Protects operations by ke
eping information confidential. Provides 4 20% 
information by collecting , analyzing , and summarizing development 
and service issues. 
6. Accomp lishes engineering and organizat ion mission by completing 3 5% 
related results as needed . 
7. Develops software solutions by ·studying information needs; 4 5% 
conferring w ith users; studying systems flow, data usage, and work 
processes ; investigating problem areas; following the software 
development lifecycle. 
4 
(b)(6)
Matt er of N-, Inc. 
Notes on Difficulty Level 
1 Novice 
2 Some Exposure 
3 Familiarity with Computers 
4 Bachelor's · · 
5 Master's 
The Petitioner stated that the proffered position requires a bachelor's degree in computer science, 
electronics engineering, computer information systems, or a related field, plus a minimum of two to 
four years of related experience. 
C. Analysis 
We findthat the Petitioner has not credibly and sufficiently demonstrated what work its company or 
the Beneficiary will perform on the product. Accordingly, we cannot determine 
whether the proffered position qualifies as a specialty occupation. 
As duly noted by the Director, is a product that belongs to the corporation 
The evidence of record contains, for example, the "Terms of User Agreement" which 
·authorizes the use of the · product by ' a corporation, 
incorporated under the laws of the State of Delaware." The U.S. Patent and Trademark Office 
application to trademark the '' mark also identifies ' · as the 
applicant. Other evidence in the record, such as marketing documents; invoices, and bank 
statements, similarly reference ' .as the corporate entity which owns 
The Petitioner has ·not sufficiently explained the nature of its relationship to 
That is, the Petitioner has not explained the roles, responsibilities, division of labor, and other salient 
aspects of the relationship between these two companies with respect to the 
product. 1 The Petitioner also has not submitted contracts or other evidence establishing the actual 
terms of agreement, if any, between and the Petitioner. Without additional 
1 The Petitioner initially signed the Attorney-Clie nt Agreement for attorney services to trademark the 
mark. Subse quently, however, the actual trade mark application was filed by not the Petitioner. 
We also note that the website states that was copyrighted by The 
webs ite a lso state s that is "A Product of and is "Brought to you by [the Petitioner]." 
Furthermore, and the Petitioner share the same address. In a proposal to 
the Petition er submitted a "Gene ral Company Background" claiming that it is the "Pare nt Organization" of 
However, the Petitioner's federal tax return s do not indic ate that the Petitioner owns stock in any 
other foreign or domestic corporation. The proposal also states that the company, identified as "[The Petitioner] 
has "80+" full-time employees. Th is is s ignificantl y higher than any number of employees the Petitioner has 
previou sly 
claimed, and raises the question of whether has its own set of employees. Overall, while 
it is evident that the Petitioner and are related, the specifi c relationship between the two compa nies 
is unclear. 
5 
(b)(6)
Matt er of N-, Inc. 
information and evidence, we cannot determine wheth~r the Petitioner has actual work available on 
the project, and can make a bona fide offer of employment for such work on the 
project? While the Petitioner and may share a common 
owner, a corporation is nevertheles s a separate and distinct legal entity trom its owners or 
stockholder s. See Mauer of M-, 8 I&N Dec. 24, 50-51 (A. G., BIA 1958); Maller of Aphrodite lnvs. 
Ltd , 17 I&N Dec. 530 (Comm 'r 1980); and Matter of Tessel, Inc. , 17 I&N Dec. 631 (Act. Assoc. 
Comm'r 1980). 
Nevertheless , assuming arguendo that is a product of the Petitioner or that the 
Petitioner is otherwise authorized to perform work on the Petitioner has not 
submitted sufficient evidence to demonstrat e exactly what work the Petitioner has available and will 
perform on the project. · 
The Petitioner provided generalized, broad descripti ons of the work to be performed on the 
project. The "milestones" described in the "Product Overview with Milestone Development 
Plan" document are broadly termed and do not explain the actual work to be performed, and by 
whom. For example , the "milestones" to be completed include a "Private-Lab el and POS integration 
release" in May 2016 and release" in December 2016. However, there is 
no further explanation of what specific tasks are needed to achieve these broad milestones, who will 
perform these specific tasks, how many work hours are needed to accomplish each task, or any other 
pertinent information about the work to 
the completed. The Petitioner likewise provided a "Deta iled 
Work streams" chart which lists the positions, wages by hour, location of work, and number of hours 
per month, but does not describe in detail the actual work to be performed. 
In addition , the product overvie w lists the "Core Team" as: (l) the Petitioner ' s CEO/Founder; (2) an 
individual in "Engineering"; (3) an individual in "Marketin g & Operations"; and (4) an individual in . 
"Business Development." However, there is insufficient evidence establishing that these "Core 
Team" members were actively workin g for the Petitioner as of the time of filing: There is 
insufficie nt evidence that the Petitioner employs or has employed the individuals in "Engineering" 
. and "Business Development" within the past several years, as neither individual appears on the 
Petitioner's organizational chart, 2013 and 2014 W-2 forms, or 2015 payroll information , among 
other document s. While the individual in "Marketin g & Operation s" appears to have been a former 
employee, she was not actively working for the Petitioner at the time of filing, according the 
Petitioner 's organizational chart, 2015 Quarter 1 Form 94 1, and 2015 payroll records.3 Even the 
Petiti oner's CEO/Founder was not listed in the Petitioner's payroll records for all months in 2015. 
In the five months of 2015 that he appeared on the payroll, he was listed as having worked zero 
2 The California Secretary of State website indicates that the Petitioner's corporate status has been suspended. That is, 
the Petitioner 's powers, rights and privileges , including the right to use its corporate name in California, were suspended. 
See attac hed print-outs. The Petition er's corporate status raises additional questions regardin g its ability to make a bona 
fide offe r of employment. · 
3 This individual was listed as a paid employee on the Petitioner's March, April, May, and June payroll records. 
However , she was listed as having worked zero hours in each of these months. S he was no longer on the Petitioner's 
July and subsequent payroll records. 
6 
(b)(6)
Matter of N-, Inc. 
hours. The Petitioner has not explained and documented who constitutes 
current "Core Team." 
actual, 
The Petitioner also has not specifically identified which of its other employees ate actively working 
on the product. The Petitioner 's organizational chart does not specifically identify 
which employees have been assigned to the team.4 In fact, the organizational chart 
- which lists 36 different positions (not including contracted positions)- does not contain any of the 
11 positions the Petitioner listed in a separate chart depicting the required labor or "Detailed Work 
streams" for the project (i.e., an Engagement Manager, Onsite- Manager, Project 
Manager, Sr. Architect, Test Manager, Android Developer, iOS Developer, Windows Mobile 
Developer, Web Developer, 
Manual Tester, and Ul Designer).5 
Notably, none of the individuals who hold the 11 positions listed on the "Detailed Work streams" 
chart will perform full-time work. To illustrate, for the entire month of April 2015,the Engagement 
Manager will work zero hours, the Onsite - Manager and Sr. Architect will work a total of 0.5 hours 
each, and six other positions will work only one hour each. The position having the most hours as of 
the end ofPhas e II, which ends in June 2017, is the Manual Tester position, which will have worked 
a total of27 hours for the three-month period of April to June, 2017. Overall, the Petitioner has not 
sufficiently explained and documented its actual need for additional, full-time staffing on the 
project. 
" [J]t is incumbent upon the Petitioner to resolve the inconsistencies by independent objective 
evidence." Matter o.fHo, 19 l&N Dec. 582,591 (BlA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective evidence 
pointing to where the truth lies. Jd. at 591-92. "Doubt cast on any aspect of the Petitioner 's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." I d. at 591. 
It is important to note the Director's finding that the Petitioner had previously obtained approvals for 
at least 20 H-lB beneficiaries to work on the project. The Director also found that 
the Petitioner filed at least 15 new H-1 B petitions to employ additional workers on the 
project starting from October 1, 2015. The record therefore indicates that the Petitioner has 
requested to employ at least 35 individuals on the project. In contrast, the Petitioner 
stated that it "will employ approximately 11 people to work out of [its] 2 office premises,'' and listed 
only 11 position s on the "Detailed Work streams" chart as required for the project. 
Moreover, the Director found that 
four of the Petitioner's H-18 benefi-ciaries who were supposed to 
have been assigned to the project were actually assigned to work in states far from 
California. The Petitioner has not provided an explanation, corroborated by objective evidence, 
4 The organizational chart doe s, however, spec ifically identifY two of the Petition er' s contractor s that are on the 
team (i.e. , the Ul Archite ct and Ul Designer, both identified as a' ). 
' The Petitioner listed an on-site Ul Designer as one of the required personnel on this chart. It is not clear whether this 
position is th.e same as the contracted Ul Designer position depicted on the organi zational chart. 
7 
(b)(6)
Matter of N-, Inc. 
reconciling its various claims regarding the required personnel for the. project.6 
Again, it is incumbent upon the Petitioner to resolve inconsistencies in the record, and doubt cast on 
any aspect of the Petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition." !d. at 591-2. 
Regarding the sufficiency of the Petitioner's work space, the Petitioner initially indicated that the 
Beneficiary will work on the project from its office located in 
California. The Director also found that the 35 H-1 B beneficiaries whom the Petitioner claimed 
were to work on the project were also supposed to be working from the same 
office. However, the lease for this particular office address reflects that these premises consist 
of only 250 square feet. The Petitioner has not sufficiently explained and documented how its office 
premises were sufficient to house the entire team, even at the time it entered into the 
lease on September 11, 2014 : While the Petitioner has subsequently leased a.larger office located in 
C.alifornia, this new lease nevertheless does not overcome the Petitioner ' s initial lack of 
office space. A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). 
Considering all of the above factors- including the Petitioner's vague descriptions of the work to be 
done on the inconsistent levels of staffing claimed, as well as the lack of adequate 
office space - we cannot find that the Petitioner has sufficiently demonstrated what work it has 
available and will actually perform on the project. 
Moreover, the Petitioner has not consistently and credibly demonstrated what work , if any, the 
Beneficiary will actually perform for the project. 
For instance, there is no specific mention of the Beneficiary oi the role of the Software Engineer in­
the "Product Vision/Business Plan," "Product Overview with Milestone Development Plan," 
"Detailed Work streams" chart, or any other project document about The Petitioner 
has not specifically explained how the Beneficiary's duties correlate to the "milestones" described in 
the project overview , or how the Beneficiary's role fits in within the 11 other positions listed in the 
"Detailed Work streams" chart. 
The Petitioner's descriptions of the proffered duties are also vague and duplicative. For example, 
the Petitioner stated that the Beneficiary will spend 25% of his time on the duties of: developing 
information systems by designing, developing, and installing software solutions; determining 
operational feasibility by evaluating analysis, problem definition, requirements, solution 
development, and proposed solutions; and documenting and demonstrating solutions by developing 
documentation , flowcharts , layouts, diagrams , charts , code comments and clear code. The Petitioner 
then stated that the Beneficiary will spend another 15% of his time on the duties of: preparing and 
6 On appeal, the Petitioner does not directly contest the Director 's findings. Instead , the Petitioner vaguely states that the 
Service erred in "any and all other and/or relating issues raised in the denial or in this appeal." 
8 
(b)(6)
Matter of N-, Inc. 
installing solutions ·by determining and designing system specifications, standards, and 
programming; and improving operations by conducting systems analysis; recommending changes in 
policies and procedures. The Petitioner has not adequately distinguished the first set of duties from 
the second set of duties , even though they accouf}t for separate percentages of time. 
With regard to the first set of duties, the Petitioner indicated that it is a "Difficulty Level" 5, which 
requires a master's degree. However, the Petitioner has never claimed that the proffered position 
requires a master's degree. 7 Nor has the Petitioner claimed that positions within the "Computer 
Programmers " occupational classification normally require a master's degree. Rather, the Petitioner 
repeatedly states that a bachelor 's degree is the normal minimum requirement for this as well as 
other positions within the "Computer Programmers" occupational classification. We observe that 
the Petitioner designated the proffered position as a Level I (entry) position, which indicates that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. 8 The Petitioner 's designation of this position as a Level I, entry-level position further 
underm ines the Petitioner's characterizations ofthe proffered position.9 
Finally, we note the Petitioner 's statement that the Beneficiary "will be designated to primarily work 
at the [Petitioner's] business premises in CA on [its] internal software product suite -
The use of the word "primarily" denotes that the Beneficiary may also be 
assigned to perform work other than at the Petitioner's business premises and/or on the 
project. We also note the Petitioner 's Employment Agreement s with the Beneficiary which 
state that the Beneficiary "shall also perform such other duties in the ordinary course of business as 
7 The Petitioner also does not claim that the Beneficiary possesses a master's degree or its equivalent. 
8 A Levell wage rate is described as follows: 
Level I (entry) wage rate s are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These emplo yees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and famil.iarization with the employer 's. 
methods, practices , and programs. The employees may perform higher level work for training and 
deve.lopmental purposes. These emplo yees work under close supervisio n and receive specific 
instructi ons on required tasks and results expected. Their work is close ly monitored and reviewed for 
accuracy. State ments that the job offer is for a researc h fellow, a worker in training , or an internship 
are indicat ors that a Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigratio n Programs (rev. Nov . 2009) , available at 
http://www.foreignlaborcert .dolet a.gov/pdf/NPW HC _Guidance _Rev ised _I 1_2009.pdf 
9 The Petitioner 's designation of this position as a Level I, entry-level position undermine s any claim that the po~ ition is 
particularly difficult, particularly as compared to other position s within the same occupation. Nevertheless, a Level I 
wage-designation does not preclude a proffered position from classification as a 
specialty occupation, just as a Level IV 
wage-de signation does not definitively establish such a clas sification . In certain occupations (e.g. , doctors or lawyers) , a 
Level 1, entry -level position would still require a minimum of a bachelor 's degree in a specific specialty , or its 
equivalent , for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as .. 
a specialty occupation if that higher-level position does not have an entry requirement of at least .a bachelor's degree in a 
specific specialty , or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself 
conclu sive evidence that a proffered position meets the requirements of section 2 14(i)( I) of the Act. 
9 
(b)(6)
Matter of N-, Inc. 
performed by other persons in similar such positions, as well as such other reasonable duties as may 
be assigned from time to time by the [Petitioner]." These Employment Agreements further state that 
the Beneficiary's "duties shall be rendered at [Petitioner's] business premises or at such other places 
as the (Petitioner] may require." 10 When considered as a whole, the evidence of record lacks a 
sufficient, detailed explanation of all the work the Beneficiary will be assigned to perform during the 
entire validity period requested, including the location(s) of such work and the specific job duties to 
be performed. 
For all of the above reasons, we find the evidence of record insufficient to demonstrate that the 
Petitioner has work available to perform on the project, and that the Petitioner will 
assign the Beneficiary to work on the project in the manner asserted. We are 
therefore precluded from understanding the substantive nature of the proffered position and its 
constituent duties. 
Consequently, we are precluded from finding that the proffered position satisfies any criterion at 
8 C.F .R. § 214.2(h)( 4 )(iii)(A), because it is the substantive nature of that work that determines ( 1) the 
normal minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity or 
uniqueness of the proffered position , which is the focus of the second alternate prong of criterion 2; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is an 
issue under criterion 3; and (5) the degree of specialization and complexity of the specific duties, which 
is the focus of criterion 4. 
Accordingly, as the evidence doe.s not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition deni,ed for this reason. 
II. CONCLUSION 
The Petitioner has not established that the proffered position , more likely than not, qualifies as a 
specialty occupation. 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; Maller of Otiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, 
that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-, Inc., ID# 16862 (AAO May 31, 2016) 
10 The Petitioner submitted an "amended" Employment Agreement in response to the Director's RFE which had noted 
several impermissible provisions relating to the LCA in the original Employment Agreement. Both Employment 
Agreements contain the above statements. 
10 
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