dismissed H-1B Case: Computer Systems Analysis

U.S. Citizenship 
and Immigration 
Services 
In Re : 20486762 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 31, 2022 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ l 101(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 California Service Center Director denied the petition, in part determining the Petitioner did not 
demonstrate the Beneficiary was qualified for the position. The matter is now before us on appeal. 
Upon de nova review, we will dismiss the appeal as the matter is now moot. We will further dismiss 
the appeal on two additional bases . 
A review of U.S. Citizenship and Immigration Services (USCIS) records indicate that on a date 
subsequent to the denial of this petition, a U.S. employer submitted a new Form 1-129, Petition for a 
Nonimmigrant Worker, on behalf of the Beneficiary . USCIS records further indicate that this new 
Form 1-129 was approved. Because the Beneficiary in this petition has been approved for H-lB 
employment based upon the filing of another petition, further pursuit of the matter at hand is moot. 
Furthermore, the Petitioner included incorrect dates of intended employment on the petition, the 
Director issued a request for evidence (RFE) informing the petitioning organization the dates must be 
adjusted, and they did not make the requested changes. The dates of intended employment the 
Petitioner provided on the petition were October 1, 2020, through September 30, 2020, making the 
ending date one day before the starting date. The Petitioner is required to provide accurate dates not 
only to set up the framework for USCIS to designate parameters for an approval, but also because 
every petition must be executed in accordance with the instructions on the form, which are 
incorporated into the regulation requiring its submission. 8 C.F.R. § 103.2(a)(l). Further discussion 
of the filing requirements for applications and petitions is found at 8 C.F.R. § 103 .2(b )( 1) that 
provides: "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." Now on appeal, the Petitioner 
indicates its lack of response to the incorrect dates issue in its RFE response was an oversight and they 
provide an amended Form I-129 page with an adjusted ending date of September 30, 2023. 
In Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988), the Board of Immigration Appeals held that 
if a petitioner was put on notice of an evidentiary requirement (by statute, regulation, form instructions, 
RFE, etc.) and was given a reasonable opportunity to provide the evidence, then any new evidence 
submitted on appeal pertaining to that requirement would not be considered, and the appeal would be 
adjudicated based on the evidentiary record before the director. 1 
Conversely, if the Petitioner had not been put on notice of the deficiency or given a reasonable 
opportunity to address it before the denial, and on appeal it submits additional evidence addressing the 
deficiency, the record would generally be remanded to allow the Director to initially consider and 
address the newly submitted evidence. Id. 2 Despite the Director's inaccurate reference to licensing 
requirements in the denial instead of the ending employment date, the fact remains that the Petitioner 
provided an incorrect ending date, was informed of the issue and afforded the opportunity to remedy 
the shortcoming, did not do so before the Director, and now submits new evidence at the appellate 
stage. As a result, we will not accept the new evidence on appeal. This issue is also dis positive of the 
appeal. 
Even if the above two topics were not present, we would not find in the Petitioner's favor on the 
Beneficiary qualifications issue because it did not preponderantly establish what its prerequisite 
qualifications were for the position. We note that even though they mentioned what the U.S. 
Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) provides for the expected 
education requirements of the Computer Systems Analysts profile-which is the same standard 
occupational classificational code the Petitioner designated for this position on the DOL ETA Form 
9035 & 9035E, Labor Condition Application for Nonimmigrant Workers submitted with this 
petition-they did not state that the information in the Handbook was the same as their position 
requirements as it relates to the educational mandates to prepare to be a Computer Systems Analyst. 
So based on those shortcomings, it seemingly caused the Director to presume that the Handbook 
education requirements were the same as the Petitioner's, and that was an incorrect assumption on the 
Director's part. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter of Y-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA 1998). A petitioner must 
satisfy the burden of persuasion, meaning they must establish the degree to which their arguments and 
evidence should persuade or convince USCIS that the requisite eligibility parameters have been met 
(i.e., the obligation to persuade the trier of fact of the truth of a proposition). Dir., Office of Workers' 
Comp. Programs, Dep 't of Labor v. Greenwich Collieries, 512 U.S. 267, 274 (1994). The level at 
which petitioners must persuade in the present context is the preponderance of the evidence. Whether 
a petitioner can show that a particular fact or event is more likely than not present, or established, is 
1 This finding is reiterated in numerous cases since Soriano: Matter of Izaguirre, 27 I&N Dec. 67, 71 (BIA 2017); Matter 
of Patino, 23 I&N Dec. 74, 77 (BIA 2001 ); Matter of Adeniji, 22 I&N Dec. 1102, 1126 (BIA 1999); Matter of Xiu Hong 
Li,21 I&NDec.13, 18(BIA 1995);MatterofCuello,20I&NDec.94,96(BIA 1989). 
2 A remand to a previous trier of fact for new claims or evidence occurs within other appellate venues, as well. See Jander 
v. Ret. Plans Comm. of IBM, 910 F .3d 620 (2d Cir. 2018), cert. granted, 139 S. Ct. 2667 (2019), and vacated and remanded, 
140 S. Ct. 592 (2020); F. Hoffinann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 175 (2004). 
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the determinant of whether they have met the preponderance of the evidence standard of proof 
Ultimately, the Petitioner has not preponderantly established what its position requirements were for 
this position. 
Based on that failure, we cannot even make a determination of whether the Beneficiary is qualified 
for their position or not. A beneficiary's credentials to perform a particular job are relevant only after 
the position is found to be a specialty occupation. And the record does not establish that the Petitioner 
requires a baccalaureate or higher degree in a specific specialty, or its equivalent for the offered 
position. As a result, we withdraw the Director's decision as it relates to whether the Beneficiary is 
qualified to occupy the position and we conclude the petition should remain denied for not 
demonstrating it qualifies as a specialty occupation. 
ORDER: The appeal is dismissed. 
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