dismissed H-1B Case: Computer Science

MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
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 "senior 
software engineer" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act)§ 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1l0l(a)(l5)(H)(i)(b). The 
H-lB 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 petition. 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. SPECIALTY OCCUPATION 
A. Legal Framework 
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. 
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 [(I)] 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 qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(!) A baccalaureate or higher degree or its equivalent is normally the mnumum 
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 of" W-F-, 
21 l&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)(l) of the Act and the regulation at 8 CF.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, USCIS 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 1-129, Petition for a Nonimmigrant Worker, the Petitioner described itself as a 
22-employee company that engages in the business of "Software Services." The Petitioner seeks to 
employ the Beneficiary as a "senior software engineer" from October 1, 2015 , to July 29, 2018, at a 
salary of$67 ,000 per year. 
The labor condition application (LCA) submitted to support 
the visa petition states that the proftered 
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): 
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Matter of N-, Inc. 
[The Beneficiary] will be responsible for developing software · solut ions by studying 
inform ation needs , conferring with user s, stud ying systems flow , data usage , and 
work · processes ; investigating problem areas; , and following the software 
development lifecycle for Responsibilities will include 
determining operational feasibility by evaluating problem definition, requirem ents, 
soluti on development , and proposed soluti ons for documenting and 
demon strating solution s by developing flowcharts, layout s, diagrams, charts , 
code comments and clear code; preparing and installing solutions by 
determining and designing system specifications , standards, and programmin g for 
improving operation s by condu cting systems analysis; 
reco mmending chan ges in policies and procedures of keeping 
abreast with state-of~the-art developmen t tools, programming technique s, and 
computing equipment; provid ing information by collectin g, analyzin g, and 
summarizing develop ment and service issues for client s; and 
supporting junior software engineers. 
In response to the Director ' s request for evid ence, the Petitioner elaborated upon the duties of the 
proffered position , as well as the time spent on each duty , as follow s: 
Tasks Difficulty % Time 
Level to be 
Spent 
1. Develops information syste ms by s tudying operat ions; designing, 
developing, and installin g softwa re solutions; supports and develops 5 25% 
software team. Develops softwa re solutions by studying inform ation 
need s; conferring with users; studying systems flow, data usage , and 
work processes; investigating problem ·areas; following the software 
development lifec ycle. 
2. Determine s operational feasibi lity by evaluating anal ysis, problem 
definition , requirem ents, solution development, and proposed 4 10% 
solutions . Documents and demonstrate s solutions by developing 
docum entation , flowchart s, layout s, diagrams, charts, code comments 
and clear code . 
3. Prepare s and installs solutions by determinin g and designing system 4 15% 
spec ificat ions, stand ards, and programmin g. · Impro ves operati ons by 
conducting systems anal ysis; reco mmendin g c hanges in polici es and 
procedures. 
4. Updates job knowled ge by studying state-o f-the-art development 4 10% 
tool s, programmin g techniques , and computing equipment; 
participating m educational opportunities; reading profess ional 
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Matter of N-, Inc. 
publications; maintaining personal networks; participating m 
professional organizations. 
5. Preparing and installing solutions by determining and designing 4 
system specifications, standards . Protects operations by keeping 
information confidential. 
6. Provides information by collecting, analyzing, and summarizing 3 
development and service issues . 
7. Keeping abreast with state-of-the-art development tools, programming 4 
techniques, and computing equipment 
8. Supports and develops software engmeers by providing advice , 3 
coaching and educational opportunities. Accomplishes engineering 
and organization mission by completing related results as needed. 
9. Supporting junior software engineers 5 
Notes on Difficulty Level 
1 Novice 
2 Some Exposure 
3 Familiarity with Computers 
4 Bachelor 's 
5 Master's 
20% 
5% 
5% 
5% 
5% 
The Petitioner stated that the proffered position requires a bachelor ' s degr ee 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 find that 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 thatbelong s to the corporation 
The evidence of record co ntains , for example, the "Terms of User Agreement" which 
authorize s 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 
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Matter of N-, Inc. 
However, 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 information and evidence, we cannot determine whether the Petitioner has actual work 
· available on the project, and can make a bona fide offer of employment for such 
work on the project.2 While the Petitioner and may share a 
common owner, a corporation is nevertheless a separate and distinct legal entity from its owners or 
stockholders. See Matter of M-, 8 I&N Dec. 24, 50-51 (A. G., BIA 1958); Matter ofAphrodite Invs. 
Ltd., 17 I&N Dec. 530 (Comm 'r 1980); and Matter ofTessel , 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 demonstrate exactly what work the Petitioner has available and will 
perform on the project. 
The Petitioner provided generalized, broad descriptions 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-Label 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 
"Workstreams " chart which lists broad activities and phases to be completed, but does not further 
explain what specific tasks will be performed, who will perform these specific tasks, how many 
work hours are needed to accomplish each task, or other pertinent information. 
The Petitioner has not specifically identified which of its employees are actively working on the 
product. The Petitioner 's organizational chart does not specifically identify which 
1 We note that the Petitioner initially signed the Attorney-Client Agreement for attorney services to trademark the 
Subsequently, however , the actual-trademark application was filed by not 
the Petitioner. We also note that the website states that was copyrighted by 
The website also states that is "A Product of ' and is "Brought to you by [the 
Petitioner]. " Furthermore , and the Petitioner share the same address. Overall, while it 
is evident that the Petitioner and are related, the specific relationship between the two companies is 
unclear . 
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 attached print-outs. The Petitioner's corporate status raises additional questions regarding its ability to make a bona 
fide offer of employment. 
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Matter of N-, Inc. 
employees have been assigned to the team.3 Moreover, the product overview lists 
the project's "Core Team" as: (1) the Petitioner's CEO/Founder; (2) an individual in "Engineering"; 
(3) an individual in "Marketing & Operations"; and (4) an individual in "Business Development." 
However, there is insufficient evidence establishing that these "Core Team" members were actively 
working for the Petitioner as of the time of filing. There is insufficient 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 documents. While the individual in 
"Marketing & Operations" 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 941, and 2015 payroll records.4 Even the Petitioner'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 hours. Overall, there is insufficient evidence in the 
record to demonstrate what staff the Petitioner has actually dedicated to the project. 
"(l]t is incumbent upon the Petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 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. !d. at 591-92. "Doubt cast on any aspect of the Petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sutliciency of the remaining evidence 
offered in support of the visa petition." !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." 
Moreover, the Director found that four of the Petitioner's H-1 B beneficiaries 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, 
reconciling its various claims regarding the required personnel for the project. 5 
Again, it is incumbent upon the Petitioner to resolve inconsistencies in the record, and do:ubt 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 ofthe visa petition." Jd. at 591-2. 
3 The organizational chart does, however , specifica lly identify two of the Petitioner 's contractors that are on the 
team (i.e., the UI Architect and UI Designer, both identified as a' '). 
• 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 . She was no longer on the Petitioner's 
July or subsequent payroll records. 
5 
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. " 
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Matter of N-, Inc. 
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 
California, 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 !zummi , 22 I&N Dec. 169, 176 
(Assoc. Corum '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 Jack 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 or the role of the Senior Software 
Engineer in the "Product Vision/Busine ss Plan," "Product Overview with Milestone Development 
Plan," "Workstreams" chart, or any other project document about The Petitioner 
has not specifically explained how the Beneficiary's duties correlate to the "milestones" or 
"Workstreams " described in the project documentation. 
The Petitioner 's descriptions of the proffered duties are vague and duplicative. For example, the 
Petitioner stated that the Beneficiary will spend 15% of his time on duties such as "[p ]repares and 
installs solutions 
by determining and designing system specifications, standards, and programming." 
The Petitioner then stated that the Beneficiary will spend another 20% of his time on the identical 
duties of "[p ]reparing and installing solutions by determining and designing system specifications, 
standards." The Petitioner also listed a separate set of job duties involving "designing, developing, 
and installing software solutions" which account for another 25% of his time. The Petitioner also 
indicated that the Beneficiary will spend separate percentages of time to perform the duty of keeping 
updated with "state-of-the-art development tools, programming techniques, and computing . 
equipment." The Petitioner has not adequately distinguished each of the stated job duties from one 
another, even though they account for separate percentages of time. 
Also, despite the proffered title of "senior software engineer," the Petitioner designated the proffered 
position as a Levell (entry) position.6 In designating the proffered position at a Levell wage rate, 
6 
A Level I wage rate is described as follow s: 
8 
Matter of N-, Inc. 
the Petitioner has indicated that the proffered position is a comparatively low, entry-level position 
relative to others within the occupation. 7 
That is, in accordance with the relevant DOL explanatory information on wage levels, this wage rate 
indicates that the Beneficiary is only required to have a basic understanding of the occupation and 
will perform routine tasks that require limited, if any, exercise of judgment. See U.S. Dep't of 
Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf The 
Petitioner's designation of the proffered position as a Level I, entry-level position is inconsistent 
with this purportedly senior-level position with job duties such as "[supporting] and [developing] 
software engineers by providing advice, coaching and educational opportunities" and "[s]upporting 
junior software engineers." 
Furthermore, the Petitioner indicated that some of the proffered duties are 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. 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 classiftcation.8 Again, 
we observe that the Petitioner designated the proffered position as a Level I position, which indicates 
that it is a comparatively low, entry-level position relative to others within the occupation. These 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators 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. 
Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _I I_ 2009.pdf. 
7 The Petitioner's designation of this position as a Levell, entry-level position undermines its claim that the position is a 
senior position compared to other positions 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-designation does 
not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a Level I, 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 
conclusive evidence that a proffered position meets the requirements of section 2 14(i)( I) of the Act. 
8 The Petitioner indicates that the job duty of "[s]upports and develops software engineers by providing advice, coaching 
and educational opportunities" is a Difficulty Level 3, requiring "Familiarity with Computers." This leads us to question 
whether the Petitioner requires at least a bachelor's degree for its other software engineers. 
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Matter of N-, Inc. 
inconsistencie s further undermine the credibility of the position descriptions, as well as the 
Petitioner's overall 
credibility. 
Finally , we note the Petitioner 's state ment that the Beneficiar y "will be designated to primaril y work 
at the [Petitioner 's] business premises in CA on [its] internal software produ ct suite -
The use of the word "primarily" denotes that the Beneficiary may also be 
assigned 
to perform work other than at the Petitioner ' s b{Jsiness premises and/or on the 
proj ect. 
We also note the Petitioner 's Employment Agreement with the Beneficiary which states that the 
Beneficiar y "shall also perform such other duties in the ordinary course of busines s as performed by 
other person s in similar such positions, as well as such other reasonable duties as may be assigned 
from time to time by the [Petitioner]." The Employment Agreement further states that the 
Beneficiary 's "duties shall be rendered at [Petitioner's] business premi ses or at such other places as 
the [Petitioner] may require." When considered as a whole, the evidence of record lacks a sufficient, 
detailed explanation of all the work the Beneficiar y will be assigned to perform durin g 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 reason s, we find the evidenc e of record insufficient to demon strate 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 positi on 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 
uniquene ss 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. § 2l4.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifi es as a specialty occupation. The appeal will be 
dismissed and. the petition denied for this reason . 
II. CONCLUSION 
The Petitioner has not established that the proffered position, more likely than not, qualifies as a 
spec ialty occupation. In visa petition proceedings, it is the Petitioner 's burden to establish eligibility 
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Matter of N-, Inc. 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 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# 16820 (AAO May 31, 2016) 
II