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)§ IOI(a)(IS)(H)(i)(b), 8 U.S.C. § l!Ol(a)(IS)(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 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, the appeal will be dismissed. 
I. SPECIALTY OCCUPATION 
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 [(1)] 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: 
(I) A baccalaureate or higher degree or its equivalent is normally the m1mmum 
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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(b)(6)
Matter of N-, Inc. 
As such and consonant with section 214(i)(l) 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. Chertofj; 484 F.3d 139, 147 (lst 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-1 B 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 De.fi:msor 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 I-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 thatthe 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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(b)(6)
Matter of N-, Inc. 
[The Beneficiary] will be responsible for evaluating customer's 
operational feasibility by problem definition, requirements analysis, solution 
development, and proposed solutions. Her 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 
customers; Improving customer operations by conducting systems 
analysis, recommending changes in policies and procedures 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 
Level 
1. Develops information systems by designing, developing, and 
installing software solutions. Determines operational feasibility by 5 
evaluating analysis, problem definition, requirements, solution 
development, and proposed solutions. Documents and demonstrates 
solutions by developing documentation, flowcharts, layouts, diagrams, 
charts, code comments and clear code 
2. Prepares and installs solutions by determining and designing system 4 
specifications, standards, and programming. Improves operations by 
conducting systems analysis; recommending changes in policies and 
procedures. 
3. Obtains and licenses software by obtaining required information from 4 
vendors; recommending purchases; testing and approving products. 
4. Updates job knowledge by studying state-of-the-art development 4 
tools, programmmg techniques, and computing equipment; 
participating m educational opportunities; reading professional 
publications; maintaining personal networks; participating m 
professional organizations. 
5. Protects operations by keeping information confidentiaL Provides 4 
information by collecting, analyzing, and summarizing development 
and service issues. 
6. Accomplishes engineering and organization mission by completing 3 
related results as needed. 
7. Develops software solutions by studying information needs; 4 
conferring with users; studying systems flow, data usage, and work 
processes; investigating problem areas; following the software 
development lifecycle. 
4 
%Time 
·to be 
Spent 
25% 
15% 
15% 
15% 
20% 
5% 
5% 
(b)(6)
Matter 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 find that the Petitioner has not credibly and sufficiently demonstrated whe1;t 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 
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? While the Petitioner and may share a 
1 We note that the Petitioner initially signed the Attorney-Client Agreement for attorney services to trademark the 
mark. 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. 
5 
(b)(6)
Matter of N-, Inc. 
common owner, a corporation is nevertheless a separate and distinct legal entity from its owners or 
stockholders. See Matter of M-, 8 J&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 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 "Detailed 
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 overview lists the "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.3 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. The Petitioner has not explained and documented who constitutes actual, 
current "Core Team." 
See attached print-outs. The Petitioner 's corpor ate status raises additional questions regarding its ability to make a bona 
fide offer of emplo yment. 
3 This individual was listed as a paid employ ee 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 and subsequent payroll records. · 
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(b)(6)
Matter of N-, Inc. 
The ·Petitioner also has not specificall y identified which of its other employees are 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 position s (not including contracted position s) - 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 
UI Designer). 5 
Notably, none ofthe 11 positions listed on the "Detailed Work streams" chart will perform full-time 
work. · To illu
strate, 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 of Phase 
II, 
which ends in June 2017, is the Manual Tester position , which will have worked a total of 27 
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. 
"[l]t is incumbent upon the Petitione r to resolve the inconsistencie s 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. ld. 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 ofthe visa petition ." ld. at 591. 
It is important to note the Director 's finding that the Petitioner had previously obtained approvals for 
at least 20 H-1 B beneficiaries to work on the project. The Director also found that 
the Petiti
oner 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 t9 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 positions on the "Detailed Work streams" chart as required for the project. 
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 v arious claims regarding the required personnel for the project. 6 
4 
The organizational chart does, however, specifica lly identify two of the Petitioner's contractor s that are on the 
team (i.e., the Ul Architect and Ul Designer, both identified as a' 1. 
, The Petitioner listed an on-site Ul Designer as one of the required personnel on this c hart. It is not clear whether this 
position is the same as the contracted Ul Designer position depicted on the organizational chart. 
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 th-e denial or in this appeal." 
7 
(b)(6)
Matter of N-, Inc. 
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." Id. 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 l eased 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 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 or 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 her 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 her time on the duties of: preparing and 
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 account for separate percentages of time. 
8 
(b)(6)
Matter of N-. Inc. 
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 
Progranuners" 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 positionas 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 
undermines the Petitioner's characterizations of the 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 Agreements with the Beneficiary which 
state that the Beneficiary "shall also perform such other duties in the ordinary course of business as 
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]." 10 These Employment Agreements further state . . 
7 
The Petitioner also does not claim that the Beneficiary possesses a master 's degree or its equiva lent. 
8 A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level emp loyees 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 purpo ses. These employees work under close supervision and receive spec ific 
instructions on required tasks and results expected . Their work is closel y mon itored and reviewed for 
accuracy. Statements that the job offer is for a researc h fellow, a worker in training , or an internship 
are indicators that a Levell wage shou ld 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.doleta.gov/pdf /NPWHC _Guidance_ 
Revised _ ll _2009.pdf 
9 The Petitioner 's designation of this po sition as a Level I, entry-level position undermine s any claim that the position is 
particularly difficult , particularly as compared to other positions within the same occupation. Nevertheless , a Level I 
wage-designation does not preclude a proffered position from classification as a specia lty occupation , j ust as a Level IV 
wage-designation does not definitivel y establi sh 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 spec ialty, 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 requirem ent of at least a bachelor's degree in a 
specific specia lty, 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 214(iX I) of the Act. 
10 
The Petitioner submitted an "amended" Employment Agreement in response to the Director 's RFE which had noted 
severa l impermissible provisions relating to the LCA in the original Employment Agreement. . Both Employment 
Agreements contain the same description of duties. 
9 
(b)(6)
Matter ofN-, Inc. 
that the Beneficiary's "duties shall be rendered at [the Petitioner's] business premises 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 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 
norm~l 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 tocus of criterion 4. · 
Accordingly, as the 
evidence does 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 denied 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; Matter ofOtiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Mauer ofN-, Inc., ID# 16765 (AAO May 31, 2016) 
10