dismissed H-1B Case: Education Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 8303431 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 9, 2020 
The Petitioner, an online education services provider, seeks to employ the Beneficiary temporarily as a 
"general operations manager" under the H-lB nonimmigrant classification for specialty occupations.1 
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 California Service Center denied the Form I-129, Petition for a Nonimmigrant 
Worker, concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner asserts that the Director erred in denying the petition . 
Upon de nova review, we will dismiss the appeal. 2 
I. ANALYSIS 
Upon review of the entire record, for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. 
The Director concluded that the Petitioner did not establish that the offered position qualifies as a 
specialty occupation. In her decision, the Director thoroughly discussed the Petitioner's failure to 
meet any of the four regulatory criteria at 8 C.F.R. § 214.2(h)( 4 )(iii)(A)(l)-( 4). Upon consideration 
of the entire record, including the evidence submitted and arguments made on appeal, we adopt and 
affirm the Director's decision with the comments below. 3 
1 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 101(a)(15)(H)(i)(b). 
2 The Petitioner must establish eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 
375-76 (AAO 2010). While we may not discuss every document submitted, we have reviewed and considered each one. 
3 See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano , 20 I&N Dec. 872, 874 (BIA 
1994)); see also Chen v. INS , 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]fa reviewing tribunal decides that the facts and evaluative 
judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing 
officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized 
attention to the case). 
The Petitioner stated that it "provides educational consulting and college preparation services to 
middle and high school students." On the petition, it indicated it employs four personnel. Although 
the Petitioner's response to the request for evidence (RFE) reflected the Beneficiary would "build out 
operations in emerging markets [in the] I I" and he would develop the organization's 
"operations to increase [the] company's market share and brand images," it did not provide sufficient 
evidence to demonstrate that a four-person company requires the services as described in the petition. 
Alternatively, if it implied that it is planning an expansion of its services, it did not present sufficient 
evidence relating to activities of such a development in its business. Ultimately, the Petitioner fell 
short of meeting its burden of proof on this matter. 
Simply providing job duties associated with a position is not enough to meet the Petitioner's burden of 
proof 4 An employer cannot simply state that it will employ an individual to perform duties that are 
characteristic of a specialty occupation in order to obtain a visa. Instead, we consider "the job duties of 
the offered position along with the petitioning employer's business operations to make a determination if 
the position actually requires skills of someone with a bachelor's degree" in a specific specialty ( or 
equivalent). 5 A petitioner must prove both that the position is characteristic of a qualifying position, and 
that it is making the offer of employment because it has a business need for such a position. 6 While the 
small size of a company does not disqualify it from filing within the H-lB program, it can be used to 
evaluate the nature of a position's duties. "It is reasonable to assume that the size of an employer's 
business has an impact on the duties of a particular position." 7 
Even if we were to set that issue aside, we observe conflicting information that calls the Petitioner's 
claims into question. Namely, within the RFE response the Petitioner submitted an organizational 
chart that illustrated six distinct positions in addition to four subordinate groups it depicted as being 
comprised of multiple personnel; three of the groups were labelled as "Staffs," and one was 
characterized as "Teachers." This information within the organizational chart does not square with 
the claim the Petitioner listed on the petition that it had four employees. The Petitioner must resolve 
this discrepancy in the record with independent, objective evidence pointing to where the truth lies. 8 
Moreover, within the RFE response the Petitioner discussed the Beneficiary's previous work with the 
company in which he trained salesmen, he worked with a sales team as well as with teachers, and he 
trained "his team members to be well qualified staff" This also appears incongruent with the claim 
that the petitioning organization only employs four individuals. 
An additional inconsistency resides within the Petitioner's differing accounts of what level of 
education and disciplines are required to perform in the proffered position. In the initial filing, the 
Petitioner stated its "organization requires at least a Master's Degree in Business Administration, 
Operations or related field. These minimum prerequisites for the offered position clearly mark it as a 
specialty occupation." When responding to the RFE, the Petitioner amended both the degree and the 
qualifying fields. At one point it stated the position "within [the] Petitioner's organization requires at 
least a Bachelor's or higher degree in Business Administration or [a] related field," then asserting the 
4 Altimetrik Corp. v. USCIS, No. 18-11755, 2019 WL 4746756, at *6 (E.D. Mich. Sept. 30, 2019). 
5 Fast Gear Distrib., Inc. v. Rodriguez, 116 F. Supp. 3d 839,846 (E.D. Mich. 2015). 
6 Id.; see also Shah Ghazi Investments, Inc. v. Renaud, 2010 WL 11531094, at *4 (E.D. Tex. July 23, 2010). 
7 EG Ente1prises. Inc. v. Dep't of Homeland Sec., 467 F. Supp. 2d 728, 737 (E.D. Mich. 2006). 
8 Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
2 
"[p ]erformance of these job duties require [the] beneficiary to have a background (minimum 
bachelor's degree) in Business Administration," while it later claimed that a "minimum of a bachelor's 
degree in finance, business administration, accounting or economics is necessary to qualify .... " 
Within the appeal, the Petitioner farther obscures what its actual position prerequisites are by claiming 
it requires both a bachelor's and a master's degree in business administration at different points in its 
appeal brief The Petitioner did not provide an explanation for the variances in the requirements, and 
as a result has not satisfied its burden of proof 9 
Although the Petitioner's appeal refers to an opinion letter it offered to demonstrate the position 
qualifies as a specialty occupation, it presents the same quote with essentially the same argument it 
offered before the Director without explaining why we should find those claims any more persuasive 
than the Director did. As we do not observe an error in the Director's analysis of this letter, the 
Petitioner failed to achieve its burden of proof relating to this evidence supporting its eligibility claims. 
In summary, the Petitioner does not describe the manner in which the Director committed an error in 
law or in fact. The reason for filing an appeal is to provide an affected party with the means to remedy 
what they perceive as an erroneous conclusion of law or statement of fact within a previous 
proceeding. 10 Without such an error specifically identified within the appeal, the affected party has failed 
to describe the basis for the appeal. It is insufficient to merely assert that the preceding authority made 
an improper determination. If the Petitioner does not explain the specific aspects of the decision that it 
considers to be incorrect, the organization has not meaningfully identified the reasons for taking an appeal. 
It should be clear whether the alleged impropriety in the decision lies with the interpretation of the facts 
or the application of legal standards. 11 
Where a question of law is presented, supporting authority should be included, and where the dispute is 
on the facts, there should be a discussion of the particular details contested." 12 Otherwise, in order to 
review the appeal, it would be necessary to search through the record and speculate on what possible 
errors the Petitioner claims. Ultimately, it appears the Petitioner simply does not agree with the 
Director's assessment, which is an insufficient basis for this appeal. 
II. 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 a 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. 
ORDER: The appeal is dismissed. 
9 Again, the Petitioner clear up such discrepancies to establish eligibility. Id.; see also 2233 Paradise Rd., LLC v. Cissna, 
No. 17-CV-01018-APG-VCF, 2018 WL 3312967, at *3 (D. Nev. July 3, 2018) (finding a petitioner's requirements as 
inconsistent when it changes the degree prerequisites after an RFE). 
10 See 8 C.F.R. § 103.3(a)(l)(v). 
11 Matter of Valencia, 19 l&N Dec. 354, 355 (BIA 1986). 
12 Id. 
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