dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 8423340 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 27, 2020 
The Petitioner, an information technology firm, seeks to employ the Beneficiary temporarily as a 
"chief technology officer" 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. § 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 California Service Center Director denied the Form 1-129, Petition for a Nonirnmigrant Worker, 
concluding that the Petitioner did not demonstrate that the labor condition application corresponded 
with and supported the petition . The Director further determined that the Beneficiary was not eligible 
for the H-lB cap exemption. The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. LABOR CONDITION APPLICATION 
The purpose of the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, Labor Condition 
Application for Nonimmigrant Workers (LCA) wage requirement is "to protect U.S. workers' wages 
and eliminate any economic incentive or advantage in hiring temporary foreign workers." 1 It also 
serves to protect H-lB workers from wage abuses. A petitioner submits the LCA to DOL to 
1 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Pennanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56) (indicating that 
the wage protections in the Act seek "to protect U.S. workers' wages and eliminate any economic incentive or advantage 
in hiring temporary foreign workers" and that this "process of protecting U.S. workers begins with [the filing of an LCA] 
with [DOL]."). 
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. 
§ 655.73l(a). 2 
A. Legal Framework 
Before filing a petition for H-lB classification, the regulation requires petitioners to obtain a certified 
LCA from DOL in the occupational specialty in which its foreign national will be employed. 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(l). Furthermore, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) provides that 
a petitioner must state that it will comply with the terms of the LCA. While DOL certifies the LCA, 
U.S. Citizenship and Immigration Services (USCIS) determines whether the LCA's attestations and 
content corresponds with and supports the H-1 B petition. 3 An employer "reaffirms its acceptance of 
all of the attestation obligations by submitting the LCA to [USCIS] in support of the Petition for 
Nonimmigrant Worker, Fmm I-129, for an H-lB nonimmigrant." 20 C.F.R. § 655.705. 
When comparing both the standard occupational classificational (SOC) code and the wage level 
indicated on the LCA to the claims associated with the petition, USCIS does not purport to supplant 
DOL's responsibility with respect to wage determinations. There may be some overlap in 
considerations, but USCIS' responsibility at its stage of adjudication is to ensure that the content of 
the DOL-certified LCA "corresponds with" the content of the H-1 B petition. USCIS may consider 
DOL regulations when adjudicating H-IB petitions. See Int'l Internship Programs v. Napolitano, 853 
F. Supp. 2d 86, 98 (D.D.C. 2012), aff'd sub nom. Int'! Internship Program v. Napolitano, 718 F.3d 
986 (D.C. Cir. 2013). 
The Act further prescribes DOL's limited role in reviewing LCAs stating that "[u]nless the [DOL] 
Secretaiy finds that the application is incomplete or obviously inaccurate, the Secretaiy shall provide 
the certification .... " Section 212(n)(l )(G)(ii) of the Act. USCIS precedent also states: 
2 See also Venkatraman v. REI Sys .. Inc .. 417 F.3d 418, 422 & n.3 (4th Cir. 2005); Patel v. Boghra, 369 F. App'x 722, 723 
(7th Cir. 2010); Michal Vojtisek-Lom &Adm 'r Wage & Hour Div. v. Clean Air Tech. Int'!, Inc., 2009 WL 2371236, at *8 
(Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
3 See 20 C.F.R. § 655.705(b) (clearly stating, "In [accepting an employer's petition with the DOL-certified LCA attached], 
the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the 
occupation named in the labor condition application is a specialty occupation ... , and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-1 B visa classification."). See also Matter ofSimeio Solutions, LLC, 
26 I&N Dec. 542, 546 n. 6 (AAO 2015). 
"In construing a statute or regulation, we begin by inspecting its language for plain meaning." Sullivan v. McDonald, 815 
F.3d 786, 790 (Fed. Cir. 2016) (quoting Meeks v. West, 216 F.3d 1363, 1366 (Fed.Cir.2000)). "[W]e attempt to give full 
effect to all words contained within that statute or regulation, thereby rendering superfluous as little of the statutory or 
regulatory language as possible." Sullivan, 815 F.3d at 790 (quoting Glover v. West, 185 F .3d 1328, 1332 (Fed.Cir.1999)). 
The most basic canon of statutory-as well as regulatory-construction consists of interpreting a law or rule by examining 
the literal and plain language. See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th Cir. 1996). The inquiry ends 
with the plain language as well, unless the language is ambiguous. United States v. Pressley, 359 F.3d 347, 349 (4th Cir. 
2004). Here, the plain language of the regulation is dispositive: USCIS is authorized to determine the corollaiy nature of 
the proffered position's elements as represented in an LCA when compared with those same elements as represented on 
the Form T-129, as well as the Petitioner's actual position requirements. 
2 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the 
LCA absent a determination that the application is incomplete or obviously inaccurate. 
Section 212(n)(l)(G)(ii) of the Act. In contrast, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-lB visa petition. 
Simeio Solutions, LLC, 26 l&N Dec. 542, 545--46 n.6. It is unclear how USCIS is to cany out its 
responsibilities to determine whether the LCA corresponds with and supports the H-lB petition 
without performing such a review. To illustrate, when DOL certifies an LCA, it does not perform any 
meritorious review of an employer's claims to ensure the information is true. 4 
In summary, when filing an LCA and an H-lB petition, a petitioner subjects itself to two authorities 
as it relates to the LCA: (1) to DOL through the certification process, or through a prevailing wage 
dete1mination, and (2) to USCIS by way of our authority to ensure that the LCA corresponds with and 
suppmis the petition. As specified within the Act, by simply submitting the LCA to DOL without also 
obtaining a prevailing wage determination, a petitioner has only received DOL' s certification that the 
form is complete and does not contain obvious inaccuracies. 5 In other words, it did not receive an 
evaluative determination from DOL on whether the LCA' s content and the specifics were appropriate 
and accurate. 
In order to determine whether the "attestations and content" ( e.g., the SOC code and the wage level) 
represented on the LCA correspond with the proffered position as represented on the Form 1-129 and 
in the record, we follow DOL' s guidance, which provides a five-step process for determining the 
appropriate SOC code and wage level. 6 The appropriate wage level is determined only after selecting 
the most relevant occupational category. 
The DOL guidance contains the same publicly available procedure an employer, or their 
representative, should follow to not only find the correct SOC code (i.e., utilizing the Occupational 
Information Network (O*NET)), but also to calculate the appropriate wage level. We note this is the 
same process the DOL utilizes to issue a Prevailing Wage Determination (PWD). Absent a PWD from 
DOL, we will not automatically accept the presumption that the Petitioner provided DOL with the full 
spectrum of information relating to the proffered position's requirements when it filed the LCA, which 
could affect the selection of the appropriate the SOC code or wage level for the position in this 
petition. 7 
4 DOL's Office oflnspector General, 06-03-007-03-321, Overview and Assessment of Vulnerabilities in the Department 
of Labor's Alien Labor Certification Programs I (2003). 
5Jd. 
6 U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009) (DOL guidance), available at http://www.foreignlaborcert.doleta.gov 
/pdv'NPWHC _ Guidance_ Revised_ 11 _ 2009 .pdf. 
7 A petitioner may file Fmm ETA-914L Application for Prevailing Wage Determination with DOL. USCIS will accept 
PWDs as sufficient, provided the Petitioner establishes that it fully disclosed to DOL all of the proffered position's relevant 
requirements relating to the five-step process for determining an approp1iate wage level, as outlined in the DOL guidance. 
3 
Stated more simply, DOL clearly explains the proper methodology, and based on USCIS' authority to 
determine whether an LCA corresponds with and supports an H-1 B petition, the agency evaluates both 
the appropriateness of the SOC code and the wage level. 
B. Background 
The Petitioner employs two individuals, the organization's president and the vice president, who also 
serves as its treasurer. The organization claims it has a single product that is in development but it has 
not offered probative evidence that the product is within any stage of a software development lite 
cycle. Said product is a virtual learning environment and learning management system similar to 
Google classroom, Blackboard, or Moodle. While not a basis for our decision, we note that the record 
further reflects that the Beneficiary owns 20 percent of the petitioning organization, with the president 
owning the remaining 80 percent. 8 
The Petitioner indicated the proffered position would be carried out at thee=] Incubator at I,____-,--, 
College (incubator). It specified that the Beneficiary would commit 49 percent of his time on work 
for the petitioning organization and the remaining 51 percent would farther the incubator's mission of 
teaching students an introduction to the process of beginning a new enterprise, and assist entrepreneurs 
in transforming their ideas into viable businesses. 
Pertaining to the 49 percent of the duties the Beneficiary would perform directly for the petitioning 
organization, it initially provided the position's description with 10 bullet points. The Petitioner 
claimed those duties aligned with the Computer and Information Systems Managers occupational title. 
The remaining 51 percent of the duties were represented by fourteen bullet points contained within 
the Joint Collaboration Agreement (JCA) executed between the Petitioner and the incubator. In 
response to each of the Director's requests for evidence (RFE), the Petitioner and the incubator offered 
additional details related to the job duties. For the sake of brevity, we will not quote the duties; 
however, we note that we have closely reviewed and considered them. 
On this issue, the Director determined that an insufficient alignment existed when comparing the duties 
the Beneficiary would perform for the incubator and the SOC code designated on the LCA. For the 
duties the Beneficiary would perform for the incubator that appeared to align with the selected SOC 
code, the Director found that the Petitioner had not demonstrated those functions were more likely 
than not to occur. In particular, the Director noted that several of the duties performed for the incubator 
hinged on the Beneficiary leveraging the Petitioner' sl I technology to 
streamline the learning process at the college. However, the Director concluded that because the 
8 We also note that a review of the Beneficiary's passport reflects that the Beneficiary's mother and the organization's 
president share the same unique name, although the Petitioner did not divulge whether or not they share a familial 
relationship. 
4 
Petitioner had not demonstrated that this ,._I _ _,I product actually existed, it had not shown the 
Beneficiary could perform those functions. 
C. Analysis 
1. C01Tect SOC Code 
According to DOL's guidance: 
In determining the nature of the job offer, the first order is to review the requirements of the 
employer's job offer and determine the appropriate occupational classification. The O*NET 
description that c01Tesponds to the employer's job offer shall be used to identify the appropriate 
occupational classification. 
Within the second RFE, the Director questioned whether the duties at the incubator were associated 
with the SOC code on the LCA. The Petitioner responded to that request with a June 7, 2019, letter 
from the incubator attempting to illustrate similarities between the duties as described in the 
Occupatfonal Outlook Handbook (Handbook) and the functions the Beneficiary would perform for 
the incubator. Now on appeal, the Petitioner offers a new letter from the incubator in which the content 
differs greatly from the incubator's June 2019 letter. 
First, we will not factor the content of the incubator's appellate letter into our decision; however, we 
will discuss its letter from June 2019. In Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988), 
the Board of Immigration Appeals (Board) determined that where a petitioner fails to timely and 
substantively respond to agency c01Tespondence, the appellate body will not consider any evidence 
first offered on appeal as its review is limited to the record of proceeding before the director. Further, 
in Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988), the Board held that if a petitioner was put on 
notice of an evidentiary requirement (by statute, regulation, form instructions, RFE, or other 
correspondence) 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. 
Second, the incubator's June 2019 letter contains a chart listing the duties from the Handbook's 
Computer and Information Systems Managers profile in one column, with a small number of the 
functions the Beneficiary would perform for the incubator that are purportedly similar. However, it 
does not appear that this was a valid comparison as the right-hand column repeatedly referenced the 
Beneficiary's efforts to leverage the Petitioner's D "technology to connect all stakeholders within 
the College to streamline the learning process .... " That quote was taken from 2 of the 14 duties 
within the JCA, and the incubator's representative failed to draw comparisons to the remaining 12 
JCA-related duties. 
The Petitioner has not explained how this constitutes a valid comparison, nor has it demonstrated how 
repeatedly relying on two functions sufficiently represents the breadth of the duties the Beneficiary 
would perform for the incubator. The following are some samples of how the incubator presented its 
claims (the italicized text under the incubator's duties column simply repeat the Handbook's duty, and 
the underlined text is the phrase the incubator repeatedly utilized): 
5 
Computer and Information Systems Managers Duties on behalf of the incubator 
The Beneficiary must analyze the incubator's 
computer and technology needs and recommend 
upgrades/changes in order to: 1) encourage 
faculty innovation and entrepreneurship: 
supporting faculty at the college by leveraging 
Analyze their organization's computer needs the Petitioner's technology to connect all 
stakeholders within the college to streamline the and recommend possible upgrades for top learning process executives to consider 
2) actively support the university technology 
transfer function: working with the college on 
leveraging the Petitioner's technology to 
connect all stakeholders within the college to 
streamline the learning process 
The Beneficiary will plan and direct the 
installation and maintenance of computer 
hardware and software when he leverages the 
Plan and direct the installation and maintenance Petitioner's technology to connect all 
stakeholders within the College to streamline the of computer hardware and software learning process, a process that allows him to 
encourage faculty innovation and 
entrepreneurship and actively support the 
university technology transfer function 
The beneficiary must be sure of the security of 
the colleges network and electronic documents 
m order to actively support the university 
Ensure the security of an organization's network technology transfer function knowledge of the 
and electronic documents security the colleges information technology is 
necessary in order to leverage the Petitioner's 
technology to connect all stakeholders within the 
college to streamline the learning 12rocess 
As a result, the Petitioner has offered insufficient evidence relating to the nexus between the incubator 
duties and those found within the Handbook. 
Third, and more importantly, DOL guidance indicates-and DOL administrative appeals decisions 
confirm-the public is to evaluate the elements within the O*NET and not the Handbook. 9 In fact, the 
DOL guidance does not refer to the Handbook at all within its 36 pages. As a result, any similarities 
9 DOL guidance. Furthe1more, the Board of Alien Labor Certification Appeals has affirmed that infmmation within the 
Handbook is not suitable for the purpose of determining whether an employer's job opportunity in a given case fits what 
is in the Handbook, or for classifying occupations in the LCA context. See Janrain, Inc., 2016-PWD-00003 (Nov. 16, 
2016). They fmiher explained that the Handbook offers general, career-oriented information, often too broad to align fully 
or consistently with the job code info1mation within the O*NET. Id. 
6 
between an employer's requirements and the information within the Handbook should not be considered 
when determining whether the employer identified the correct SOC code on the LCA. 
Further, as noted, the duties the Beneficiary would perform for the incubator consisted of 14 bullet 
points as represented in the JCA. At best, only four of those duties appear to align with the Computer 
and Information Systems Managers occupational title the Petitioner designated on the LCA. The 
O*NET provides the following definition for Computer and Information Systems Managers: "Plan, 
direct, or coordinate activities in such fields as electronic data processing, information systems, 
systems analysis, and computer programming." A review of the initially provided duties reveals the 
duties grouped into five categories: (1) promoting student innovation and entrepreneurship; 
(2) encouraging faculty innovation and entrepreneurship; (3) actively supporting the university 
technology transfer function; (4) facilitating university-industry collaboration; and (5) engaging with 
regional, local, and global economic development efforts. 
Based on a review of the duties the Beneficiary would perform for the incubator, the vast majority of 
those functions do not appear to properly fall under the Computer and Information Systems Managers 
SOC code. For instance, judging student competitions, mentoring students relating to business 
startups and how technology should factor into their project proposals, and giving advice to veterans 
on how to get a job in the tech sector are not duties typical to the Computer and Information Systems 
Managers occupation. Further, and as will be discussed later in this decision, the Petitioner has not 
established that these atypical duties require a bachelor's degree or higher in a specific specialty to 
perform them. 
Without an LCA that properly corresponds with and supports the petition, we cannot provide an 
accurate specialty-occupation analysis for the proffered position. We offer several examples. First, 
the statutory and regulatory definitions of a specialty occupation focus on the broader occupation as a 
whole, and the use of an incorrect occupational code may result in an erroneous decision, or one that 
does not properly assess the actual nature of the occupation in which a beneficiary would engage. 
Next, the education requirements we consider under the regulation at 8 C.F .R. § 214.2(h)( 4)(iii)(A )( I) 
may differ markedly from one occupational classification to the next. Likewise, under 8 C.F .R. 
§ 214.2(h)(4)(iii)(A)(2), a degree requirement considered common to the industry for one occupation 
may also be distinct in comparison to others. These two factors alone, which hinder USCIS' ability to 
provide a salient analysis, preclude this petition's approval. 
We note that where a petitioner seeks to employ a beneficiary in two distinct occupations, it may wish 
to consider filing two separate petitions, requesting concurrent, part-time employment for each 
occupation. While that fact pattern may not be the case here, if a petitioner does not file two separate 
petitions, and if only one aspect of a combined position qualifies as a specialty occupation, USCIS 
would be required to deny the entire petition as the pertinent regulations do not permit the partial 
approval of only a portion of a proffered position or the limiting of the approval of a petition to perform 
only certain duties. See generally 8 C.F.R. § 214.2(h). Furthermore, the petitioner would need to 
ensure that it separately meets all requirements relevant to each occupation and the payment of wages 
commensurate with the higher paying occupation. Id.; DOL guidance. Thus, filing separate petitions 
would help ensure that a petitioner submits the requisite evidence pertinent to each occupation and 
would help eliminate confusion with regard to the proper classification of the position being offered. 
7 
Additionally, neither the Petitioner nor the incubator provided the percentage of time the Beneficiary 
would devote to performing the duties for the incubator. As a result, the Petitioner has not established 
which incubator duties are more prominent than others, meaning the record does not reflect which 
tasks performed for that entity are major functions. This missing factor, if present, might aid in 
discerning the nature of the position, and whether the position was properly designated under the 
Computer and Infmmation Systems Managers occupational title. 
This is an even more prominent issue when some of the duties appear to fall under the correct SOC 
code, while others do not; and some duties might comprise a specialty occupation while others do not. 
The absence of an indication of the amount of time the Beneficiary would spend performing each duty 
for the incubator complicates the Petitioner's ability demonstrate eligibility under the H-lB program, 
as we are unable to parse out the amount of time he would perform qualifying duties versus those that 
do not. Cf GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 1167 (N.D. Cal. 2013) (finding that an 
employer's ability to demonstrate a position qualifies as a specialty occupation is significantly 
hindered when it does not establish the amount of time a beneficiary would spend performing each 
duty). 
In summary, the Petitioner has not demonstrated that it selected the correct SOC code on the LCA in 
accordance with the DOL guidance. 
2. Proper LCA Wage Rate 
We also have concerns relating to paying a foreign national the required wage, such that employing 
them does not adversely impact U.S. workers' wages or working conditions. 10 Because the Petitioner 
included several functions that are atypical to the Computer and Information Systems Managers SOC 
code, we question whether it properly calculated the prevailing wage cmTectly at the Level II wage 
rate. As noted above, the Beneficiary's prominent atypical functions include judging student 
competitions, mentoring students relating to business startups and how technology should factor into 
their project proposals, and giving advice to veterans on how to get a job in the tech sector. 
3. Petitioner's LCA Obligations 
Beyond the LCA issues we discuss above, we question whether the Petitioner would be able to meet 
its commitment to compensate the Beneficiary at the Level II wage rate, $160,763. The Petitioner 
indicated that the organization generated $0 in both gross and net annual income in the tax year 
preceding the petition filing date. There is also no indication that the incubator will compensate the 
Petitioner for any services the Beneficiary provides. Regardless of the reasoning for not generating 
any income, the organization has not proven that it has the ability to compensate the Beneficiary in 
accordance with the its obligations on the LCA. The primary mles governing an H-lB petitioner's 
wage obligations appear in the DOL regulation at 20 C.F.R. § 655.731. Except for certain authorized 
10 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
8 
deductions, this regulation requires, in pertinent part, that the H-1 B employer pay the required wage 
"cash in hand, free and clear, when due." 20 C.F.R. § 655.731(c)(2). 
By completing, signing, and submitting the LCA an employer makes certain representations and 
agrees to several attestations regarding its responsibilities, including the wages to be provided to the 
H-IB nonimmigrants. See section 212(n)(l) of the Act; 20 C.F.R. § 655.705(c)(l). Fmihermore, the 
regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) provides that a petitioner must state that it will comply 
with the terms of the LCA. While DOL certifies the LCA, USCIS determines whether the LCA's 
attestations and content corresponds with and supports the H-1 B petition. 11 An employer "reaffirms 
its acceptance of all of the attestation obligations by submitting the LCA to [USCIS] in support of the 
Petition for Nonimmigrant Worker, Form 1-129, for an H-lB nonimmigrant." 20 C.F.R. § 655.705. 
Although less common, when a disconnect exists concerning an employer's revenue or income level 
and the remuneration it offers employees, we may question whether that employer could compensate 
a beneficiary of an H-IB petition. In the present scenario, where the Petitioner has not demonstrated 
any revenue or income, nor has it shown that it would receive funds in return for the services the 
Beneficiary would perform at another organization's worksite, it is not improper that we raise doubts 
about the company's means to hire an individual with an annual wage in excess of $160,000. 
For all of these reasons, the Petitioner has not established that that the LCA corresponds with and 
supports the petition. See 20 C.F.R. § 655.705(b); Simeio Solutions, 26 I&N Dec. at 546 n.6. 
II. CAP EXEMPTION 
A Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § l 10l(a)(l5)(H)(i)(b), provides a nonimmigrant 
classification for foreign nationals who are coming temporarily to the United States to perfmm 
services in a specialty occupation. In general, H-lB visas are numerically capped by statute. Pursuant 
to section 214(g)(l)(A) of the Act, the total number ofH-lB visas issued per fiscal year may not 
exceed 65,000. 
In general, section 214(g)(5) of the Act provides in pe1iinent part that: 
The numerical limitations contained in paragraph (1 )(A) shall not apply to any 
nonimmigrant alien issued a visa or otherwise provided status under section 
101(a)(15)(H)(i)(b) who-
(A) is employed ( or has received an offer of employment) at an institution of higher 
education ( as defined in section 101 (a) of the Higher Education Act of 1965 (20 
[§] U.S.C. lO0l(a))), or a related or affiliated nonprofit entity; 
11 See 20 C.F.R. § 655.705(b) (clearly stating, "In [accepting an employer's petition with the DOL-certified LCA attached], 
the DHS determines whether the petition is supported by an LCA which conesponds with the petition, whether the 
occupation named in the labor condition application is a specialty occupation ... , and whether the qualifications of the 
nonimmigrant meet the statutory requirements for H-lB visa classification."). See also Simeio Solutions. LLC. 26 I&N 
Dec. at 546 n.6. 
9 
For purposes of section 214(g)(5)(A) of the Act, "institution of higher education" has the same 
definition as described at section lOl(a) of the Higher Education Act of 1965. 8 C.F.R. 
§ 214.2(h)(8)(F)(I). Within the H Classification Supplement to the Form I-129, the Petitioner 
indicated this petition is exempt from the H-lB cap based on the Beneficiary's employment under the 
regulation at 8 C.F.R. § 214.2(h)(8)(ii)(F)(4). This regulation permits beneficiaries to qualify for an 
exemption from the H-lB cap even if they are not directly employed by a qualifying entity, and states: 
An H-1 B beneficiary who is not directly employed by a qualifying institution, 
organization or entity identified in section 214(g)(5)(A) or (B) of the Act shall qualify 
for an exemption under such section if the H-lB beneficiary will spend the majority of 
his or her work time perfmming job duties at a qualifying institution, organization or 
entity and those job duties directly and predominately further the essential purpose, 
mission, objectives or functions of the qualifying institution, organization or entity, 
namely, either higher education, nonprofit research or government research. The 
burden is on the H-lB petitioner to establish that there is a nexus between the duties to 
be performed by the H-lB beneficiary and the essential purpose, mission, objectives or 
functions of the qualifying institution, organization or entity. 
B. Analysis 
According to 8 C.F.R. § 214.2(h)(8)(ii)(F)(4), a cap exempt foreign national may work at, but he or 
she is not necessarily required to be employed by an institution of higher education. Although some 
of the Beneficiary's duties at the incubator could be construed to relate to the college's essential 
purpose, mission, objectives or functions-"namely, [] higher education"-the Petitioner has not 
demonstrated that he could perform those duties. We reiterate that the Petitioner has not demonstrated 
that itsc=] product exists at any stage of the development process, and as a result, the Beneficiary 
could not execute thosec=J-related duties on the date the Beneficiary would begin working at the 
incubator. 
Taking a broader view of the Petitioner's claims, we further question the accuracy of its calculations 
describing what amount of time would be expended performing work for the petitioning organization 
versus the incubator. Considering the incubator-related duties, the Petitioner stated those functions 
would comprise 51 percent of the position. The Petitioner did not offer the methodology it utilized to 
calculate that percentage in any meaningful manner. Without a substantive explanation of its 
calculations, the Petitioner has not shown what the proffered position would primarily consist of. 
Based on these shortcomings, the Petitioner has not preponderantly demonstrated that the Beneficiary 
qualifies for cap-exempt status as it has not shown he "will spend the majority of his [] work time 
perfmming job duties at a qualifying institution ... and those job duties directly and predominately 
further the essential purpose, mission, objectives or functions of the qualifying institution .... " 
As the Petitioner has not demonstrated that the Beneficiary could perform the duties that might directly 
and predominately further the incubator's essential purpose, mission, objectives or functions, and 
because it did not establish how it calculated the division of the Beneficiary's time between the duties 
10 
he would perform for the employer versus the incubator, it has not shown that he qualifies for a cap 
exemption. 12 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national ''who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... " ( emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized know ledge, and 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." The 
regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates section 214(i)(l) of the Act, but adds a 
non-exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position. 13 Lastly, 
8 C.F.R. § 214.2(h)(4)(i)(A)(I) states that an H-IB classification may be granted to a foreign national 
who "will pe1.form services in a specialty occupation ... " ( emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The services the Beneficiary will perform in the position determine: (1) the normal minimum educational 
requirement for entry into the particular position, which is the focus of criterion one; (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 two; (3) the level of complexity or 
uniqueness of the proffered position, which is the focus of the second alternate prong of criterion two; 
( 4) the factual justification for a petitioner normally requiring a degree or its equivalent, when that is 
an issue under criterion three; and (5) the degree of specialization and complexity of the specific duties, 
which is the focus of criterion four. 8 C.F.R. § 214.2(h)(4)(iii)(A). 
12 Although we do not need to fully address another issue here, the Petitioner does not appear to have sufficiently 
demonstrated the incubator's role within the institution. We question whether the incubator serves primarily as an essential 
extension of an institution of higher education for its students or as a service for the local small business community. This 
issue remains umesolved here; however, if the Petitioner files a similar petition in the future it should be prepared to 
address that topic within the new filing. 
13 8 C.F.R. § 214.2(h)( 4 )(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 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. Chertojf, 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"). 
11 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
B. Analysis 
We first tum our focus to the duties the Beneficiary would perform for the incubator that that appear 
to align with the Computer and Information Systems Managers SOC code. Those incubator-related 
duties are related to the Beneficiary leveraging the Petitioner' sc=J product to connect the incubator's 
stakeholders within the college as well as integrate the school's activities under one system. 
The execution of those incubator-related fonctions are wholly reliant on the existence of the 
Petitioner'sc=]product. We observe that because the Petitioner has not demonstrated that itsc=J 
product exists, it has not established that the Beneficiary could execute those fonctions. Therefore, 
even if we were to ignore the LCA issues described above, we could not decide in the Petitioner's 
favor. 
Before the Director, the Petitioner failed to demonstrate by a preponderance of the evidence that its 
~ product existed at any stage of the production process, or the software development life cycle. 
Even on appeal, after the Director included that shortcoming in the denial, the Petitioner has not made 
such a showing. The Petitioner's only response on appeal is that the "regulations at 8 CFR §214.2(h) 
make absolutely no mention of 'a commercially available product' as a requirement for H-lB 
classification." 
Instead of offering evidence relating to itsOproduct, the Petitioner relies on a description of its 
purported product and indicates that its software will be distributed through the Android, iOS, and 
Windows platforms. However, a review of the software applications for each of thre platforms 
reveals no such product. The Petitioner also indicates that the incubator's intent to use its product 
should be sufficient evidence relating to the software. We view this situation through the 
preponderance of the evidence standard of proof. In evaluating the evidence, the truth is to be 
dete1mined not by the quantity of evidence alone but by its quality. See Chawathe, 25 I&N Dec. at 376 
(quoting Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). 
In order for this foreign worker to be able to perform a set of duties during the timeframe the Petitioner 
specified on the petition, the tools to execute those fonctions must exist at least on the beginning date 
designated; in this case September 25, 2018. Without that showing, it is unclear how the Beneficiary 
would perfmm those duties or how he would perform services in a specialty occupation. A petitioner 
must establish eligibility at the time it files the nonimmigrant visa petition. 8 C.F.R. § 103.2(b )(1 ), (12). 
USCIS may not approve a visa petition at a foture date after a petitioner or a beneficiary becomes eligible 
under a new set of facts. Matter of Michelin Tire C01p., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978) 
(finding that nonimmigrant eligibility criteria must be met at the time a petitioner files the petition). The 
conclusion the Petitioner requests us to draw is not self-evident from the documents and statements it 
submitted. 
12 
We are not required to accept cursory or primarily conclusory statements as demonstrating eligibility. 
See Innova Sols., Inc. v. Baran, 338 F. Supp. 3d 1009, 1023 (N.D. Cal. 2018); 1756, Inc. v. Att'y Gen, 
745 F. Supp. 9, 17 (D.D.C. 1990). We do not find the Petitioner's appellate arguments sufficiently 
persuasive. Products that are not yet existent cannot be relied upon to qualify under the H-1 B program 
if the Beneficiary must perform work with that product on the beginning date of intended employment. 
8 C.F.R. § 103.2(b)(l), (12); Michelin Tire Corp., 17 I&NDec. at249 (as each relate to demonstrating 
eligibility on the date the petition is filed). A favorable determination as it relates to the Beneficiaiy 
performing services in a specialty occupation must be supported by work that would actually exist at 
the front end of the requested work period. 
Moreover, of the 49 percent of the duties the Beneficiary would perform for the petitioning 
organization, some of those functions also appear to illustrate that their software product is not yet 
existent and could not be implemented at the incubator on the date the Petitioner stated the Beneficiary 
would begin work. For instance, the Petitioner indicated the Beneficiary would validate the product 
roadmap, approve product release plans, contribute to product design, and finalize project 
requirements. This appears to confirm that the D product is not fully developed, and the 
Beneficiary could not perform the associated duties relying on the Petitioner's software service. 
Even if the Petitioner demonstrated the product existed in a developmental phase, Te orrnization has 
not established who would perf mm the software development duties to ready the product for a 
final version for the Beneficiary to implement it at the incubator. As previously noted, the Petitioner 
indicated it employs two personnel and its business plan lists only a president and a vice 
president/treasurer. If the Petitioner's intention was for the Beneficiary to also perform the software 
development duties, it did not include those functions in the position's responsibilities and such 
functions do not properly fall under the Computer and Information Systems Managers occupation. 
Therefore, were we to presume that the software existed but was not yet completed, the Petitioner has 
not established who would modify and develop that software product to completion, nor has it 
demonstrated that the Beneficiary would have a product to shepherd to finalization as the 
organization's chief technology officer. 
Continuing with the issue of the petitioning organization having few employees, while the small size 
of a company does not disqualify it from sponsoring a foreign worker under the H- lB program, it can 
be used to evaluate the nature of the position's duties. See EG Enters., Inc. v. Dep 't of Homeland Sec., 
467 F. Supp. 2d 728 (E.D. Mich. 2006). Issues sun-ounding an employer's size and profitability may 
serve as an element preventing USCIS from favorably determining an offered position qualifies as a 
specialty occupation, and whether that organization would be able to employ a beneficiary with the 
proposed compensation. Such issues factor into the substantive nature of the work a beneficiary would 
perfmm. See 2233 Paradise Rd., LLC v. Cissna, No. l 7-CV-01018-APG-VCF, 2018 WL 3312967, 
at *4 (D. Nev. July 3, 2018). 
Furthermore, "[t]he H-lB classification is not intended ... for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the expectation 
of potential new customers or contracts." 14 Nevertheless, while no provision in the law for specialty 
14 Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 
13 
occupations permits the performance of non-qualifying duties, we will view the performance of duties 
that are incidental to the primacy duties of the proffered position as acceptable when they occur by chance, 
are intermittent, and are of a minor consequence.15 Anything beyond such incidental duties ( e.g., 
predictable, recurring, and substantive job responsibilities), must be specialty occupation duties or the 
proffered position as a whole cannot be approved as a specialty occupation. Additionally, performing a 
small amount of specialty occupation duties that are incidental to the primacy functions is insufficient to 
establish that the duties to be perfmmed, or the position itself, qualify as a specialty occupation. GCCG 
Inc, 999 F. Supp. 2d at 1168. 
Again, because the Petitioner has not demonstrated the percentage of time the Beneficiary would 
devote to performing the duties for the incubator, it has not established which incubator duties are 
more prominent than others. The result is that the record does not reflect which tasks performed for 
the incubator are major functions and which are not. The absence of that factor diminishes the 
Petitioner's ability to demonstrate the substantive nature of the position, what functions it would 
actually have the Beneficiary perform, and whether the position was properly designated under the 
Computer and Information Systems Managers occupational title. Cf GCCG Inc, 999 F. Supp. 2d at 
1167 (finding that an employer's ability to demonstrate a position qualifies as a specialty occupation 
is significantly hindered when it does not establish the amount of time a beneficiary would spend 
performing each duty). 
For all of the above reasons, we conclude that the Petitioner has not established the work the 
Beneficiary would actually perform in the position. Without more, we cannot determine the 
substantive nature of the proffered position, and consequently, whether it requires an educational 
background, or its equivalent, commensurate with a specialty occupation. Absent such a foundational 
showing, we cannot dete1mine whether the proffered position is a specialty occupation. This precludes 
a determination that the proffered position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A). As 
a result, the Petitioner has also not established that the Beneficiary will be performing services in a 
specialty occupation as required by Section 10l(a)(l5)(H)(i)(b) of the Act. 
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 a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
1998) (to be codified at 8 C.F.R. pt. 214); but cf 8 C.F.R. § 214.2(1)(3)(v)(C) (permitting L-lA managers or executives 
that are coming to the United States to open a "new office" in the United States to perform some non-qualifying duties 
during the one year period it takes the new office to meet the "doing business" standard). The L-1 A regulation discussed 
in the footnote recognizes that when a new office is first established and commences operations in the United States, the 
L-1 A manager or executive responsible for setting up operations will be engaged in a variety ofnon-qualitying, day-to-day 
duties not normally performed by employees at the executive or manage1ial level and that often the full range of executive 
or managerial responsibility cannot be perf01med in that first year. 14 In other words and in contrast to the L- lA new office 
regulations, no provision in the law relevant to H-lB nonimmigrants provides an initial grace period during which non­
qualifying duties may be performed. 
15 Meniam-Webster's Online Dictionary defines the adjective form of incidental as: a) being likely to ensue as a chance 
or minor consequence; b) occUITing merely by chance or without intention or calculation. Incidental, Merriam-Webster 
Dictionary (July 17, 2020), https://www.merriam-webster.com/dictiona1y/incidental. 
14 
ORDER: The appeal is dismissed. 
15