dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 4552936 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 12, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-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 of the Vermont Service Center denied the petition , concluding that the Petitioner did not 
sufficiently establish that (1) the Beneficiary will be employed in a specialty occupation , and (2) it 
will have and maintain the requisite employer-employee relationship with the Beneficiary for the 
duration of the requested employment period. Upon de nova review, we will dismiss the appeal. 1 
I. SPECIAL TY 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. 
1 We follow the preponderance of the evidence standard as specified in Ma tter of Chawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010) . 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 2 
The Petitioner indicated on the Form I-129, Petition for a Nonimmigrant Worker, and on the certified 
labor condition application (LCA)3 that the Beneficiary will work solely from her home office located in 
New Jersey as a "mongo DB resource consultant" for an end-client located in California, for the petition's 
entire employment period as follows: Petitioner ➔ R-T- (mid-vendor) ➔ U-H-G- (end-client). 
2 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
3 A petitioner submits the LCA to U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher of 
either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
2 
1. Minimum Requirements 
As a preliminary matter, we observe that the Petitioner has provided inconsistent information 
regarding the minimum requirements for the proffered position. The Petitioner initially indicates that 
"the nature of this position is so specialized and complex [the] minimum requirement is [a master's 
degree] in a specific field. However, the Petitioner did not articulate what specific field, if any, would 
be required for entry into the position. The initially submitted end-client letter states "we require at 
least a four-year Bachelor's degree in Computer Sciences, or a closely related field for performing the 
job duties of the engagement." In response to the Director's request for evidence (RFE), the Petitioner 
reiterates the end-client's requirements within its own letter. However, the Petitioner does not explain 
why its initial position requirements differ from the end-client's requirements, nor did it provide an 
explanation for the variances between its own initial and subsequently submitted position requirements. 
The Petitioner must resolve these inconsistencies and ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
We conclude that these material inconsistencies erode the Petitioner's ability to demonstrate the 
substantive nature of the proffered position. Unresolved material inconsistencies may lead us to 
reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. 4 As the record contains material inconsistencies relative to the Petitioner's 
minimum requirements for entry into the proffered position, the documentation submitted in this 
regard to establish eligibility for the classification sought lacks probative value and overall credibility. 5 
As explained above, we interpret the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. The Petitioner's initial 
minimum requirements, which propose that a master's degree in an unidentified field of study would 
suffice to perform the duties of the position, alone indicates that the proffered position is not in fact a 
specialty occupation. For these reasons, the petition may not be approved. 
2. Nature of the Proffered Position 
The Petitioner provided contractual documentation to illustrate the relationship between the parties that 
form the basis for the Beneficiary's proposed H-lB employment. Nonetheless, it has not established 
definitive specialty occupation employment for the Beneficiary. 6 For instance, the Petitioner initially 
provides copies of the general contractual agreements between the Petitioner and the mid-vendor, as 
well as the mid-vendor's "Exhibit A customer-specific engagement" document which indicated that 
an unnamed individual would be employed a "consultant" for the end-client. Since the Exhibit A did 
not identify the Beneficiary, the job title or duties of the position, the date and duration of the 
assignment, or the requirements for the position, the Petitioner has not demonstrated the relevancy of 
this document to the Beneficiary's proposed employment. The Petitioner also submits the 
aforementioned end-client letter, dated March 23, 2018, in which the end-client discusses that the 
4 Id. 
5 Mattero(Chawathe, 25 T&NDec. 369,376 (AAO 2010) (citing MatterofE-M-, 20 T&N Dec. 77, 79-80 (Comm'r 1989)). 
6 The Petitioner most recently employed the Beneficiary through STEM-related post-completion optional practical 
training. 8 C.F.R. § 274.a.12(c)(3)(i)(C); 8 C.F.R 214.2(f)(10)(ii)(C), and has provided copies of wage statements for her 
employment with the Petitioner. 
3 
Beneficiary will perform services for the end-client from her home office in New Jersey, but did not 
otherwise describe the project to which she would be assigned, or the duration of her work assignment 
for the end-client. The Director issued an RFE in which she asked for the submission of additional 
documentation to confirm various aspects of the terms and conditions of the Beneficiary's off-site 
employment. 
Notably, in its July 18, 2018 RFE response, the Petitioner provides a copy of a June 14, 2018 email 
from the end-client, which indicated "[p ]lease allow this email to serve as confirmation of the current 
assignment of [ the Beneficiary]. [She] has been working remotely for [ the end-client since July of 
2017." The Petitioner also submits a July 11, 2018 affidavit from its director,.__ ___ ____. who 
attests that"[ o ]ne of our employees, [the Beneficiary], is currently working for [the end-client]. ... 
This project is expected to run until at least 2021, and likely beyond." The Petitioner also submits a 
July 11, 2018 affidavit executed by the Beneficiary which indicates that her project with the end-client 
"is expected to continue until at least 20121, and likely beyond. This is the only work arrangement 
for me []." The Petitioner similarly asserts in its July 9, 2018 letter: 
[The Beneficiary's] services are required for [ the end-client in order to] build an 
application for the process that submits claim deletes to CMS, where sent in error. 
This process includes the claim analysis, QA, reconciliation and make sure to submit 
the correct data to CMS to take legitimate action. The project's term is expected to last 
for 3 years from the date of this writing with possible extensions. As we are not [the 
Beneficiary's] employer, we are not liable or in any way responsible for determining 
the length of her placement with our company. [The Petitioner] will be solely 
responsible for managing and controlling the length of his employment. 7 
In August 2018, USCIS contacted the signatory of the initially submitted March 2018 end-client letter 
and the June 14, 2018 email, seeking to confirm details of the Beneficiary's assignment with the end­
client. The end-client signatory responded via an August 2018 email indicating that the Beneficiary 
was employed by the end-client as a contract worker from "07 /17 /18 - 06/29/18," when the end-client 
"[ d]ecided that we would no longer need the services of [the Beneficiary], and her engagement with 
[the end-client] did end on 06/29/18." The Director denied the petition in part, concluding that the 
Petitioner had not established based on the totality of the evidence that the Beneficiary will be 
employed in a specialty occupation during the requested period of H-1 B employment. 8 We agree. 
7 Here, the Petitioner states that it is not the Beneficiary's employer, then reiterates that it is her employer. The Petitioner 
also mistakenly references the Beneficiary in the male pronoun case in this letter. The record lacks an explanation for 
these inconsistencies. Thus, we must also question the accuracy of the documents and whether the information provided 
is correctly attributed to this particular Beneficiaiy and position. The Petitioner must also resolve these inconsistencies 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 T&N Dec. at 591-92. 
8 Where evidence in the record indicates that a basic element of eligibility has not been met, it is appropriate for the Director 
to deny the petition without issuing an RFE or NOTO. See 8 C.F.R. § 103.2(b)(8)(iii). 
4 
On appeal, the Petitioner acknowledges the termination of the Beneficiary's assignment with the end­
client, indicating "we used our discretionary authority of employer when [the end-client] ended [the] 
project arbitrarily due to project funding .... ," asserting that the Beneficiary will instead work for a 
different end-client located in Ohio. 9 Importantly, the Petitioner does not explain on appeal why its 
director and the Beneficiary continued to claim that the Beneficiary's assignment with the original 
end-client was still valid and ongoing "until at least 2021, and likely beyond," in their respective July 
2018 affidavits, and in its own letter submitted in response to the Director's RFE, when in fact, the 
Beneficiary's assignment with the end-client terminated on June 29, 2018, prior to the time that the 
letter and affidavits were executed. 
We note that the misrepresentation of a material fact may lead to multiple consequences in 
immigration proceedings. First, as an evidentiary matter, the misrepresentation may impact the review 
and adjudication of the visa petition or immigration application. Ifwe do not believe that a fact stated 
in the petition is true, we may reject that assertion. See section 214(c)(l) of the Act, 8 U.S.C. § 
1184(c)(l); cf Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Anetekhai v. INS, 876 
F.2d 1218, 1220 (5th Cir. 1989). The Petitioner's submission of false statements may also call into 
question the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Next, a material misrepresentation 
that is determined to have been willful under section 212(a)(6)(C) of the Act may make an individual 
ineligible to receive a visa and ineligible to be admitted to the United States. See, e.g., Forbes v. INS, 
48 F.3d 439, 442 (9th Cir. 1995). Finally, a finding of willful, material misrepresentation may lead to 
criminal penalties. See 18 U.S.C. §§ 1001, 1546; see also United States v. O'Connor, 158 F. Supp.2d 
697 (E.D. Va. 2001). 
In light of the above, we conclude that the record lacks probative evidence of any legal obligation on 
the part of the end-client to provide the position to the Beneficiary as described by the Petitioner in 
this petition, let alone determine its substantive nature so as to ascertain whether it is a specialty 
occupation. If we cannot determine whether the proffered position as described will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 
It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified for the benefit 
sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility is to be 
determined not by the quantity of evidence alone but by its quality. Id. The Petitioner has not done 
so here. 
Because the Petitioner has not established the substantive nature of definitive work that the Beneficiary 
will perform for the stated end-client, we are unable to evaluate whether 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 entry into 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; 
9 After filing the petition, the Petitioner cannot offer a new position to the Beneficiary, or materially change aspects of the 
proffered position, including the location of the work assignment specified in the LCA. The Petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. § I 03.2(6)(1 ). 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 lzummi, 22 
I&NDec. 169, 176 (Assoc. Comm'r 1998). 
5 
(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, the Petitioner has not established 
that the proffered position is a specialty occupation. 10 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
Since the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding whether the Petitioner has established it 
will have and maintain the requisite employer-employee relationship with the Beneficiary for the 
duration of the requested employment period. See 8 C.F.R. § 214.2(h)(4)(ii) (defining the term 
"United States employer" and requiring the Petitioner to engage the Beneficiary to work such that it 
will have and maintain an employer-employee relationship with respect to the sponsored H-1 B 
nonimmigrant worker). See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not 
required to make findings on issues the decision of which is unnecessary to the results they reach"); 
see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
III. ITINERARY AND LCA REQUIREMENTS 
Additionally, since the identified basis for denial is dispositive of the Petitioner's appeal, we need not 
address another ground of ineligibility we observe in the record of proceedings. Nevertheless, we will 
briefly note and summarize it here with the hope and intention that, if the Petitioner seeks again to 
employ the Beneficiary or another individual as an H-lB employee in the proffered position, it will 
submit sufficient independent objective evidence to address and overcome this additional ground in 
any future filing. 
On appeal, the Petitioner asserts "[a]s we are [the] employer we placed the Beneficiary at [a new end­
client location] through our [mid-vendor], which clearly shows that we are the employer and have 
[the] right to move any of our [employees] under employment contract, which we are hereby attaching 
with this appeal." In support of this new contractual arrangement, the Petitioner submits a new LCA, 
certified in October 2018, for a work location with a new end-client in Ohio, along with contractual 
agreements and letters between and from the parties involved in the provision of this new employment 
opportunity for the Beneficiary. 
10 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions about the 
proffered position on appeal. 
Additionally for this same reason, we will not address whether the Petitioner's employment offer and agreements with the 
Beneficiary impose conditions that violate statutory and regulatory provisions related to the Petitioner's payment of the 
required wage, fees and costs. See generally 20 C.F.R. § 655. 731 (a), (b ), ( c ). 
6 
However, the Petitioner must submit a valid LCA for all work locations and comply with the itinerary 
requirement at 8 C.F.R. § 214.2(h)(2)(i)(B) at the time of filing of the petition. General requirements 
for filing immigration applications and petitions are set forth at 8 C.F.R. § 103.2(a)(l), in pertinent 
part, as follows: 
Every benefit request or other document submitted to DHS must be executed and filed 
in accordance with the form instructions ... and such instructions are incorporated into 
the regulations requiring its submission. 
Further discussion of the filing requirements for applications and petitions is found at 8 C.F.R. 
§ 103.2(b)(l): 
Demonstrating eligibility. An applicant or petitioner must establish that he or she is 
eligible for the requested benefit at the time of filing the benefit request and must 
continue to be eligible through adjudication. Each benefit request must be properly 
completed and filed with all initial evidence required by applicable regulations and 
other USCIS instructions. Any evidence submitted in connection with a benefit request 
is incorporated into and considered part of the request. 
The regulations require that before filing a Form 1-129 on behalf of an H-lB worker, a petitioner obtain 
a certified LCA from DOL in the occupational specialty in which the H-lB worker will be employed. 
See 8 C.F.R. § 214.2(h)(4)(i)(B). The instructions that accompany the Form 1-129 also specify that an 
H-lB petitioner must submit evidence that an LCA has been certified by DOL when submitting the 
Form 1-129. 
Additionally, the regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) provides as follows: 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an itinerary 
with the dates and locations of the services or training and must be filed with USCIS 
as provided in the form instructions. The address that the petitioner specifies as its 
location on the Form 1-129 shall be where the petitioner is located for purposes of this 
paragraph. 
As noted above, the Petitioner indicated on the Form 1-129 that the Beneficiary will be working 
remotely from her home office in New Jersey for the duration of the H-lB employment period, i.e., 
from October 1, 2018, to September 20, 2021. The certified LCA submitted with the Form 1-129 also 
indicates that the Beneficiary will work only at that New Jersey location. However, on appeal, the 
Petitioner submits an LCA for the Beneficiary's newly proposed employment at an end-client location 
in Ohio from October 18, 2018, to September 20, 2021. 
The regulation at 8 C.F.R. § 214.2(h)(2)(i)(E) states: 
Amended or new petition. The petitioner shall file an amended or new petition, with 
fee, with the Service Center where the original petition was filed to reflect any material 
changes in the terms and conditions of employment or training or the alien's eligibility 
7 
as specified in the original approved petition. An amended or new H-le, H-lB, H-2A, 
or H-2B petition must be accompanied by a current or new Department of Labor 
determination. In the case of an H-lB petition, this requirement includes a new labor 
condition application. 
It is self-evident that a change in the location of a beneficiary's work for a new employer at a 
geographical area not covered by the LeA filed with the Form I-129 is a material change in the terms 
and conditions of employment. Because work locations are critical to the Petitioner's wage rate 
obligations, the change deprives the petition of an Le A supporting the periods of work to be performed 
at the Ohio location and certified on or before the date the instant petition was filed. While the 
Petitioner submits a new LeA listing the Ohio work location and the respective dates of employment 
with us on appeal, the Petitioner in this case was required to submit an amended or new H-lB petition 
with users indicating the change in locations and dates along with the newly certified LeA that 
establishes eligibility at the time that a new or amended petition is filed. 
While DOL is the agency that certifies LeA applications before they are submitted to users, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits 
branch, USeIS) is the department responsible for determining whether the content of an LeA filed for 
a particular Form 1-129 actually supports that petition. The regulations state, in pertinent part: 
For H-lB visas ... DHS accepts the employer's petition (DHS Form 1-129) with the 
DOL-certified LeA attached. In doing so, the DHS determines whether the petition is 
supported by an LCA which corresponds with the petition, whether the occupation 
named in the [Le A] is a specialty occupation or whether the individual is a fashion 
model of distinguished merit and ability, and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification. 
20 e.F.R. § 655.705(b) (emphasis added). 
As 20 e.F.R. § 655.705(b) requires that USeIS ensure that an H-lB petition is filed with a "DOL­
certified LeA attached" that actually supports and corresponds with the petition on the petition's 
filing, this regulation inherently necessitates the filing of an amended H-1 B petition to permit users 
to perform its regulatory duty to ensure that a certified LeA actually supports and corresponds with 
an H-lB petition as of the date of that petition's filing. In addition, as 8 e.F.R. § 103.2(b)(l) requires 
eligibility to be established at the time of filing, it is factually impossible for an LeA certified by DOL 
after the filing of an initial H-1 B petition to establish eligibility at the time the initial petition was filed. 
Therefore, in order for a petitioner to comply with 8 e.F.R. § 103.2(b)(l) and users to perform its 
regulatory duties under 20 e.F.R. § 655.705(b), a petitioner must file an amended or new petition, 
with fee, whenever a beneficiary's job location changes such that a new LeA is required to be filed 
with DOL. 
In light of the above, we conclude that a necessary condition for approval of an H-1 B visa petition is 
an Le A, certified on or before the filing date of the petition, with information, accurate as of the date 
of the petition's filing, as to where the beneficiary would actually be employed. Furthermore, the 
petition must list the locations where the beneficiary would be employed and be accompanied by an 
itinerary with the dates the beneficiary will provide services at each location. Both conditions were 
8 
not satisfied in this proceeding. The Petitioner's attempt on appeal to amend the petition by submitting 
a letter indicating that it has moved the Beneficiary's proposed employment to a new work location is 
insufficient to comply with the itinerary requirements. Additionally, the Petitioner's attempt to 
remedy the LCA deficiency by submitting an LCA certified after the filing of the petition is also 
ineffective. Again, a petitioner must establish eligibility at the time of filing a nonimmigrant visa 
petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 
17 I&N Dec. 248 (Reg'l Comm'r 1978). 
It is further noted that to ascertain the intent of a petitioner, we must look to the Form 1-129 and the 
documents filed in support of the petition. It is only in this manner that we can determine the exact 
position offered, the location of employment, the proffered wage, et cetera. If a petitioner's intent 
changes with regard to a material term and condition of employment or the beneficiary's eligibility, 
an amended or new petition must be filed. To allow a petition to be amended in any other way would 
be contrary to the regulations. Taken to the extreme, a petitioner could then simply claim to offer 
what is essentially speculative employment when filing the petition only to "change its intent" after 
the fact, either before or after the H-1 B petition has been adjudicated. The agency made clear long 
ago that speculative employment is not permitted in the H-1 B program. 11 While a petitioner is 
certainly permitted to change its intent with regard to non-speculative employment, e.g., a change in 
duties or job location, it must nonetheless document such a material change in intent through an 
amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
In view of the foregoing, the Petitioner has not overcome the Director's first basis for denying the 
petition, and it has also not met the itinerary requirement at 8 C.F.R. § 214.2(h)(2)(i)(B), and the LCA 
requirement at 20 C.F.R. § 655.705(b). For these reasons, the petition may not be approved. 
Accordingly, we conclude that the petition cannot be approved on the additional grounds that the 
requisite itinerary and LCA were not filed with the petition. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
11 See, e.g., 63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). 
9