dismissed H-1B Case: Information Technology

(b)(6)
DATE: JUL 2 7 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigration Servi ce: 
Administr ativ e Appeals Offic e 
20 Massachusetts Ave. , N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Tha~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www. uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the petition. The matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
I. PROCEDURALBACKGROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
34-employee "Information Technology Services" company established in In order to employ 
the beneficiary in what it designates as a full-time "Computer Programmer" position at a salary of 
$70,000 per year, the petitioner seeks to classify him as a nonimmigrant worker in a specialty 
occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b ). The petitioner is requesting to employ the beneficiary from 
nr.tnhP.r 1 7014 to August 26, 2017 at its business address of _ in 
New Jersey. The petitioner 
indicated on the Form I-129 that the beneficiary will not 
work off-site or at any other addresses. 
The Director denied the petition, finding that the evidence of record does not establish that a work 
assignment exists for the beneficiary, and thus, that the proffered position qualifies for classification 
as a specialty occupation. The petitioner now files this appeal, asserting that the Director's decision 
was erroneous. 
We base our decision upon our review of the entire record of proceeding, which includes: (1) the 
petitioner's Form I-129 and the supporting documentation filed with it; (2) the Director's Request for 
Evidence (RFE); (3) the petitioner's response to the RFE; (4) the Director's letter denying the 
petition; and (5) the Notice of Appeal or Motion (Form I-290B) and submissions on appeal. 
As will be discussed below, we have determined that the Director did not err in her decision to deny 
the petition. 1 Beyond the Director's decision, we have identified an additional ground of 
ineligibility, i.e., that the evidence does not demonstrate that the petitioner qualifies as a United 
States employer with an employer-employee relationship with the beneficiary. The appeal will be 
dismissed and the petition will be denied for these reasons. 
II. THE PROFFERED POSITION 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a "Computer Programmers," and that it corresponds to Standard Occupational 
Classification (SOC) code and title "15-1131, Computer Programmers" from the Occupational 
Information Network (O*NET). The LCA further states that the proffered position is a Level I 
(entry) position. 
In a letter dated March 31, 2014, the petitioner provided an overview of the proffered position and 
1 We conduct appellate review on a de novo basis. Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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its constituent duties, stating that the beneficiary will work on "specific programming projects" that 
will involve duties including "analyzing and gathering project requirements, developing and 
designing business programs customized to meet specific needs." The petitioner also stated that the 
beneficiary's duties will include "writing, updating and maintaining computer programs or latest 
software packages," "analyz[ing], review[ing], and rewrit[ing] software programs," "conducting 
trial runs of programs and software applications," "revis[ing], repair[ing], fine tun[ing] the 
expansion of existing programs," and "perform[ing] systems analysis and programming tasks to 
maintain and control the use of computer systems software as a computer programmer." With 
respect to the minimum educational requirement for the proffered position, the petitioner stated that 
"[t]he usual minimum requirement for performance of the job duties of a Computer Programmer in 
our company, as with any other similar organization, is a Bachelor's degree in Science, computer 
science, computer engineering, electronics, engineering, physical sciences or equivalent." 
The petitioner indicated that the beneficiary will be exclusively assigned to work on its in-house 
project, TRN IMCLAP (Intelligent Mobile Cloud App), during the entire validity period requested . 
In response to the RFE, the petitioner confirmed that "there is sufficient specialty occupation work 
for the beneficiary to perform his services on [its] in-house project IMCLAP at the Petitioner's work 
location for the duration of employment." 
The petitioner also submitted a series of letters describing the beneficiary's responsibilities during 
different phases of the TRN IMCLAP project. The first in this series of letters describes his 
responsibilities during the "Product Design (Core Product)" phase of the project, which would last 
from October 6, 2014 to November 5, 2015, as follows: 
• Will be responsible for planning, Analyzing and execution of IMCLAP and 
environments. 
• Responsible in Standardize business processes and deliver end to end business 
process model; Facilitate workshops, present client reports, business cases and 
other deliverables ensuring clarity around process reorganization and ownership 
are effectively communicated and trained in conformance to program objective 
• Gather client's key business drivers & document Business, Functional /non­
functional requirements, Data flow models, Use Cases, and systems with various 
kinds of Content Management needs. 
• Perform rigorous unit and system testing before releasing application to the end 
users. 
• Will perform end-to-end testing, which includes Functional, Regression and 
Retesting. 
• Involve in integration testing, UAT, data migration and Product Rollout and 
support 
• Integration of data model updates into code base 
• Mentor junior Analyst 
• Create and execute Unit test plans 
• Defect management and resolution-
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• Manage a variety of programmmg and design staff according to project(s) 
scheduled. 
(Verbatim.) 
The second in this series of documents describes the beneficiary's responsibilities during the 
"Software Analysis" phase of the project, which would last from November 5, 2014 to December 4, 
2014, as follows: 
In addition to the above-mentioned duties, candidate will identify problems, study 
existing systems to evaluate effectiveness and develop new systems to improve 
production of workflow .... Analyst will assist in developing application software 
on specific needs. He will provide technical evaluation of new products, assess time 
estimation and provide technical support within the organization .... 
The third in this series of documents describes the beneficiary's responsibilities during the 
"Technical Design/Irnplementation!festing" phases of the project, which would last from December 
5, 2014 to March 30, 2015, as follows: 
Analyst job duties shall include analyzing and gathering project requirements , 
developing and designing business programs customized to meet specific needs, 
training users on the use of software applications and providing trouble shooting and 
debugging support. It is thus her responsibilities and the time spent on the same 
would be as under: 
• Gather, analyze the business requirements from end-users 
• Lead and co-ordinate with teams for project deliverables 
• Design, develop and integrate the Business Process Management and 
Enterprise Application module 
• Provide subject matter expertise on workflow and database products 
• Provide dynamic reporting capability 
• Resolve technical issues in the systems by research and investigation. 
• Standardize and automate the build process 
• Using Design Methodologies & Tools: 
(Verbatim.) 
The fourth in this series of documents describes the beneficiary's responsibilities during the "Mobile 
Add-On/Release 1.0/2.0 and 3.0" phases of the project, which would last from March 31, 2015 to 
September 29, 2017, as follows : 
• Beneficiary will enter program codes into the computer systems and enter 
commands into the computer to run and test the programs. He will replace, delete 
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or modify codes to correct errors. He will provide technical support, solve 
problems and troubleshoot systems. 
• He will specialize in developing programs for specific applications to certain 
industries. He will be involved in systems integration, debugging, 
troubleshooting and installation. Beneficiary will offer solutions for various 
software and hardware problems and compatibility of various systems. 
• The Beneficiary will also be responsible for updating existing software systems 
and updating management on new software that is developed . Beneficiary will 
maintain records to document various steps in the programming process. Involve 
in creating sequence diagrams as part of design using Visio. 
• Develop marketing strategies, operating model and lead business transformation 
by standardizing business processes, restructuring organization, enabling 
Culture/Behavior change, effectively communicating policies, processes and 
procedures in alignment with strategic direction and business plans 
• Increase sales turnover by 30% by . identifying commercial opportunities and 
expanded market share, through the management of various organizational, 
operational and technology changes 
• Improve management efficiency by 10% by integrating information systems for 
accounts and HR management enabling staff to focus on critical value added 
activities 
• 15% reduction in inventory costs, and improved customer retention, by modifying 
proprietary inventory management database to reflect product-brand sales 
• Analyze business's core and support processes to standardize processes by 
reducing process variance and eliminating waste. 
• Develop technology roadmap, facilitate IT system procurement and 
implementation by collaborating with finance team to negotiate deals resulting in 
an integrated technology infrastructure 
(Verbatim.) 
III. SPECIALTY OCCUPATION 
A. Legal Framework 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines the 
term "specialty occupation" as one that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
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(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. 
The term "specialty occupation" is further defined at 8 C.P.R.§ 214.2(h)(4)(ii) as: 
An occupation which requires [(1)] theoretical and practical application of a body of 
highly specialized knowledge in fields of human endeavor including, but not limited 
to, architecture, engineering, mathematics, physical sciences, social sciences, 
medicine and health, education, business specialties, accounting, law, theology, and . 
the arts, and which requires [(2)] the attainment of a bachelor's degree or higher in a 
specific specialty, or its equivalent, as a minimum for entry into the occupation in the 
United States. 
Pursuant to 8 C.P.R. § 214.2(h)( 4)(iii)(A), to qualify as a specialty occupation, the position must 
meet one of the following criteria: 
(1) 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. 
As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.P.R. 
§ 214.2(h)( 4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
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F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii) , U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaure ate or 
higher degree, but one in a specific specialty that is directly related to the proffered 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 particul ar 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
. higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner , 201 F. 3d 384. The critical element is not the title 
of the position nor an employer 's self-imposed standards, but whether the position actually requires 
the theoretical and practic al application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
B. Analysis 
We agree with the Director that the evidence does not establish that a work assignment exists for the 
beneficiary , and thus, that the duties of the proffered 'position are in fact associated with a specialty 
occupation. That is, the petitioner has not submitted sufficient, credible evidence to establish that 
the beneficiary will be exclusively assigned to its in-house TRN IMCLAP project, as claimed. 
As evident from the job descriptions quoted above, the record of proceeding presents the duties 
comprising the proffered position in terms of relatively abstract and generalized functions. The job 
descriptions lack sufficient detail and concrete explanation to establish the substantive nature of the 
work within the context of the TRN IMCLAP project, and the associated applications of specialized 
knowledge that their actual performance would require. For example, the petitioner stated that the 
beneficiary will "assist in developing application software on specific needs," and "will provide 
technical evaluation of new products , assess time estimation and provide technical support within 
the organization." The petitioner did not clarify what it meant by the broad terms "assist" and 
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"provide technical support," what associated applications of specialized knowledge are involved, and 
how these duties specifically relate to the TRN IMCLAP project. As another example, the 
petitioner stated that the beneficiary will " [ d]esign, develop and integrate the Business Process 
Management and Enterprise Application module." The petitioner did not further explain what 
substantive tasks and bodies of knowledge are involved, what these Business Process Management 
and Enterprise Application modules are, and how they relate to TRN IMCLAP . Notably, there are 
no specific references to the Business Process Management and Enterprise Application modules 
within the TRN IMCLAP documents. 
Despite the petitioner's assertion that the beneficiary will be exclusively assigned to its in-house 
TRN IMCLAP project, the petitioner stated in its March 31, 2014 letter that the beneficiary will be 
"developing and designing business programs customized to meet specific needs (emphasis 
added)." The petitioner also stated that the beneficiary's duties will include "writing, updating and 
maintaining computer programs or latest software packages," "analyz[ing], review[ing], and 
rewrit[ing] software programs," "conducting trial runs of programs and software applications," and 
"revis[ing], repair[ing], fine tun[ing] the expansion of existing programs (plural emphasized)." In 
other documentation, the petitioner described the proffered duties as including work on unidentified 
programs, applications, and systems in the plural, such as "developing programs for specific 
applications to certain industries" and "study[ing] existing systems to evaluate effectiveness and 
develop new systems (emphasis added)." Here, however, the petitioner has identified only one 
product - the TRN IMCLAP mobile application - that is being developed through the TRN 
IMCLAP project to which the beneficiary will be exclusively assigned. The petitioner has not 
specified what other projects, programs, software packages, applications, and systems the 
beneficiary will work on, and how they specifically relate to TRN IMCLAP project. Further, the 
petitioner has not articulated the nature of the beneficiary's work on existing systems and programs, 
considering that the TRN IMCLAP project seeks to develop a new mobile application. 
Moreover, the petitioner repeatedly referenced unspecified clients and end-users to whom the 
beneficiary will provide his services. To illustrate, some of the proffered duties include "[g]ather 
client's key business drivers . . . [and] requirements," and "[g]ather, analyze the business 
requirements from end-users." The petitioner has not explained who these clients and end-users are 
and why there would be client and end-user requirements, particularly during the initial design and 
development stages of an in-house project. Similarly, the petitioner listed one of the proffered 
duties as "[ s ]tandardize business processes and deliver end to end business process model; Facilitate 
workshops, present client reports, business cases and other deliverables." The petitioner has not 
explained why there would be client workshops and reports in the beginning product design stage of 
an in-house project. 
In fact, there are several job duties which are clearly not limited to the TRN IMCLAP project, such 
as "[i]mprove management efficiency by 10% by integrating information systems for accounts and 
HR management enabling staff to focus on critical value added activities ." Other similar duties 
include "15% reduction in inventory costs, and improved customer retention, by modifying 
proprietary inventory management database to reflect product-brand sales," and "facilitat[ing] IT 
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system procurement and implementation by collaborating with finance team to negotiate deals." 
These duties involving the petitioning company's systems for accounts , HR management, and 
inventory are outside of the scope of the TRN IMCLAP project, which the petitioner has described 
as the development of a mobile application related to home appliances automation. These aspects 
of the petitioner's descriptions undermine the petitioner's assertion that the beneficiary will be 
exclusively assigned to the TRN IMCLAP project, and raise additional questions as to the actual 
nature of the proffered position. 
Another problematic aspect of the petitioner's job descriptions is that many of the proffered duties 
appear inconsistent with the wage level selected here. As previously discussed, the petitioner 
designated the proffered position on the LCA as a Level I (entry) position. In designating the 
proffered position at a Level I wage, the petitioner has indicated that the proffered position is a 
comparatively low, entry-level position relative to others within the occupation. 3 However, the 
petitioner listed several duties indicating that the beneficiary will have relatively high-level 
responsibilities over others in the company, such as "[m]anage a variety of programming and design 
staff," "[l]ead and co-ordinate with teams for project deliverables," and "mentor junior Analyst." 
Other relatively high-level duties include "lead business transformation by . 
. . restructuring 
organization," "[i]mprove management efficiency by ... integrating information systems," and 
"[d]evelop technology roadmap, facilitate IT system procurement and implementation." Moreover, 
on appeal the petitioner repeatedly emphasizes the "advanced, complex nature of the position's 
3 A Level I wage rate is described in DOL's "Prevailing Wage Determination Policy Guidance" as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have 
only a basic understanding of the occupation. These employees perform routine tasks that 
require limited , if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. The employees may 
perform higher level work for training and developmental purposes. These employees work 
under close supervision and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy. Statements that the 
job offer is for a research fellow, a worker in training, or an internship are indicators that a 
Level I wage should be considered. 
See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance , 
Nonagric. Immigration Programs (rev. Nov. 2009) , available at http://www.foreignlaborcert.doleta.gov/ 
pdf/NPWHC _Guidance_ Revised _11_ 2009. pdf. 
Thus, in accordance with the above DOL explanatory information on 'Yage levels, the Level I wage rate 
indicates that the beneficiary is only required to have a basic understanding of the occupation and carries 
expectations that the beneficiary perform routine tasks that require limited, if any, exercise of judgment; that 
he would be closely supervised; that his work would be closely monitored and reviewed for accuracy ; and 
that he would receive specific instructions on required tasks and expected results . 
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duties." The petitioner's designation of the proffered position as a Level I, entry-level position is 
inconsistent with these and other stated duties, and raises additional questions regarding the 
substantive nature of the proffered position. 4 
In addition to being inconsistent with the Level I wage rate, many of the proffered duties are also 
outside of the scope of general duties for the SOC code and occupation title "15-1131, Computer 
Programmers." More specifically, the petitioner stated that the beneficiary will "[ d)evelop 
marketing strategies, operating model and lead business transformation by standardizing business 
processes, restructuring organization, enabling Culture/Behavior change, effectively communicating 
policies, processes and procedures in alignment with strategic direction and business plans." The 
petitioner also stated that the beneficiary will "[i]ncrease sales turnover by 30% by identifying 
commercial opportunities and expanded market share, through the management of various 
organizational, operational and technology changes." The "15-1131, Computer Programmers" 
occupational classification does not, however, include any sales, marketing, or management-type 
duties. 5 Not only are these duties outside of the computer programmers occupational classification , 
but the petitioner has not explained how they specifically relate to the TRN IMCLAP project. 6 
4 
The issue here is that the petitioner's designation of this pos1t10n as a Level I, entry-level pos1t10n 
undermines its claim that the position is relatively higher than other positions within the same occupation . 
Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 
entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its 
equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation 
qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least 
a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage level designation may 
be a consideration but is not a substitute for a determination of whether a proffered position meets the 
requirements of section 214(i)(l) of the Act. 
5 See O*NET Details Report, 15-1131, Computer Programmers, http://www.onetonline.org/link/details/15-
1131.00 (last visited July 22, 2015). 
6 With respect to the LCA, DOL provides clear guidance for selecting the most relevant O*NET occupational 
code classification. The "Prevailing Wage Determination Policy Guidance" states the following: 
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 corresponds to the employer's job offer shall be used to identify the 
appropriate occupational classification . . . . If the employer's job opportunity has worker 
requirements described in a combination of O*NET occupations, the SW A should default 
directly to the relevant O*NET-SOC occupational code for the highest paying occupation. 
For example, if the employer's job offer is for an engineer-pilot, the SW A shall use the 
education, skill and experience levels for the higher paying occupation when making the 
wage level determination. 
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The petitioner submitted a document entitled "TRN - IMCLAP - 2014: Intelligent Mobile Cloud 
Application," and a technical document entitled "TRNIMCLAP - INTELLIGENT HOME 
APPLIANCES AUTOMATION. "7 However, it is not evident how these documents constitute 
U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009), available at http://www.foreignlaborcert.doleta.gov / 
pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. 
Here, however, the petitioner has not identified which other occupational classifications are applicable to the 
proffered position. Therefore, we are unable to determine whether the petitioner has selected the most 
relevant O*NET occupational code, i.e., the code for the highest-paying occupation. 
Moreover, where a petitioner seeks to employ a beneficiary in two or more distinct occupations, the 
petitioner should file separate petitions requesting concurrent, part-time employment for each distinct 
occupation. While it is not the case here, if a petitioner does not file 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 and/or the limiting of the approval of a petition to perform only certain duties. See generally 8 
C.P.R. § 214.2(h). Furthermore and as is the case here, 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. See generally 8 C.P.R. § 214.2(h); U.S. Dep't of Labor, Emp't & Training Admin., 
Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009) , 
available at http://www .foreignlaborcert.doleta.gov /pdf/NPWHC _Guidance_ Revised _11_ 2009 .pdf. Thus, 
filing separate petitions would help ensure that the petitioner 
submits the requisite evidence pertinent to each 
occupation and would help eliminate confusion with regard to the nature of the position being offered. 
7 These documents vary significantly in their descriptions of major aspects of the project, such as the 
milestones, timelines, and resources dedicated to the project. For instance, the first document, "TRN -
IMCLAP- 2014: Intelligent Mobile Cloud Application," lists the milestones as: (1) Product Design (10/5/14 
to 11/5/14); (2) Software Analysis (1115/14 to 12/4/14); (3) Technical design (12/5/14 to 1/15/15); (4) 
Implementation (1/15/15 to 3/15/15); (5) Unit Testing (2/18/15 to 3/16/15); (6) Beta Testing (3/15/15 to 
3/30/15); (7) Release 1 (3/31/15 to 6/29/15); (8) Mobile Add-on release (6/30/15 to 3/30/16); (9) Release 2 
(3/31/16 to 3/30/17); and (10) Release 3 (3/31/17 to 9/29/17). It lists the required personnel as consisting of 
10 programmer analysts, 6 systems analysts, 3 database administrators, 7 application engineers, and 4 
support engineers (total of 30 positions). 
The second document, "TRNIMCLAP - Intelligent Home Appliances Automation," divides the project 
milestones into four levels, each of which contains different timelines for planning, requirements gathering, 
design, development, integration and testing, and deployment. In addition, it lists the required personnel as 
consisting of 22 programmer analysts, 1 systems analyst, 2 database administrators, 1 quality analyst, and 1 
human resource person (total of 27 positions). 
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evidence of the beneficiary's assignment. 8 Neither document specifically references the beneficiary. 
While both documents indicate that several programmer analyst positions (among other positions) 
are involved in the project, neither document details the specific tasks to be performed by each 
programmer analyst, or by the programmer analyst position generally. 9 
The petitioner also submitted a document entitled "TRN -IMCLAP: Product Development 
Differentiators & Timeline- 2014." Like the two documents referenced above, this document also 
does not specifically mention the beneficiary. This document broadly depicts the "Proposed Team 
Structure" as consisting of the following teams or positions: Project Executive Management; Project 
Manager; Business Analyst; Quality Assurance Team; Development Team; and Database Team. It 
is not clear which of the above teams or positions include the proffered position, as the duties of the 
proffered position confusingly overlap with almost all of the roles and responsibilities for the 
above-listed teams or positions. 10 These overlapping duties raise additional questions regarding the 
actual role of the proffered position in the TRN IMCLAP project. 
The petitioner asserted that the beneficiary will be directly supervised by a "Project Manager of 
Petitioner in a senior supervisory capacity," and that "such supervision is at Petitioner's work 
While understandably some plans may change over time, the petitioner is obligated to explain these changes, 
especially if the changes are significant as in this case. It is incumbent upon the petitioner to resolve 
inconsistencies in the record by independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). The petitioner has not done so here. 
8 The petitioner's March 31, 2014 cover letter specifically characterized the "TRN - IMCLAP - 2014: 
Intelligent 
Mobile Cloud Application" document as the "In-house Project Brochure detailing work 
assignment for which beneficiary will be assigned to work." 
9 Again, we note that one document states that 10 programmer analysts are needed, while the other states that 
22 are needed. 
10 For instance, the Project Manager is "[r]esponsible for the successful planning executions, monitoring, 
control and closure of a project [sic]," while the beneficiary will also be "responsible for planning, 
[a]nalyzing and execution of IMCLAP and environments." The Business Analyst is to "[a]ct a liaison 
between business users and technical team developing TRN-Imclap [sic]." The beneficiary will also be 
responsible for a variety of duties related to gathering and analyzing requirements from business users (i.e., 
clients and end-users) as well as to "[l]ead and co-ordinate with teams for project deliverables." The Quality 
Assurance Team is to "[test] the product for bugs, defects and other software issues." Similarly, the 
beneficiary will perform numerous testing functions, such as "rigorous unit and system testing," "end-to-end 
testing," "integration testing," and "[c]reate and execute Unit test plans." The Database Team is responsible 
for "[setting up] the entire database and ... for its functioning and security." The beneficiary will likewise 
be responsible for a variety of database functions, including "[providing] subject matter expertise on .. 
database products." 
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1'age u 
location." The petitioner's Offer Letter to the beneficiary specifically states that he is "required to 
report to Mr. ~ on October 2014 at [the petitioner's] corporate office at 
m NJ." The petitioner's organizational chart submitted on 
appeal also identifies Mr. as a "Project Manager" who oversees numerous technical 
positions, including twenty computer programmers (to be hired). However, according to the 
petitioner's list of employees and their present work locations pursuant to their LCA, Mr. : 
is a "Systems Analyst" working at in , New Jersey. 11 The 
petitioner has not explained how Mr. -- · could be the beneficiary's direct supervisor on the 
petitioner's in-house project when Mr. is not actually working at the petitioner's worksite. 
Again, it is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Matter of Ho, 19 I&N Dec. at 591-92. Doubt cast on any aspect of 
the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. /d. 
Furthermore, the evidence does not demonstrate that the petitioner has sufficient work space to 
support the employment of the beneficiary, as well as the entire "team" for the TRN IMCLAP 
project, at the petitioner's premises at n New 
Jersey. In particular, the petitioner stated on appeal that its current premises at are 
sufficient to accommodate its seven employees currently working on-site, "in addition to 
conveniently accommodating additional at least seven (7) employees at its work location [sic]." 
The petitioner also stated on appeal that its current "Lease agreement for the work location ... can 
conveniently accommodate more than twenty five (25) employees." However, the evidence of 
record does not corroborate these assertions, as there is no information in the floorplan or lease 
specifying the maximum occupancy allowed. 12 Nevertheless, and more importantly, the petitioner 
has not explained and documented how its current premises are sufficient to accommodate its seven 
on-site employees plus the entire TRN IMCLAP team. As outlined in the evidence of record, the 
TRN IMCLAP project will require 27-30 employees, for a total of 34-37 employees on-site. Thus, 
even if the petitioner's premises could accommodate more than 25 employees as asserted, it is still 
not apparent that the petitioner has sufficient work space for its current on-site employees and the 
entire TRN IMCLAP team. The lack of adequate work space leads us to further question the 
credibility of the petitioner's descriptions of the beneficiary's assignment and of the TRN IMCLAP 
. 11 13 proJect overa . 
11 In another list of employees submitted on appeal, the petitioner indicated that Mr. 
petitioner in 2014. 
joined the 
12 The floorplan of the petitioner's current premises consists of five (5) individual offices and one general 
office area of 688 square feet. 
13 The petitioner also indicated that it can enter into a new lease for additional workspace, as needed, located 
at 1• _ New Jersey. However, the petitioner must establish 
eligibility at the time of filing. 8 C.P.R. § 103.2(b )(1). 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. Comm'r 1978). 
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Page 14 
Finally, we share the Director's concern that many of the petitioner's documents contain 
descriptions, diagrams, and other statements copied verbatim or virtually verbatim from materials 
created by other individuals or companies. On appeal, the petitioner asserts that "mere similarity in 
certain literature of brochures or certain pictorial diagrams in brochures to contents of another 
product description on web sites do not and cannot affect the veracity and genuine nature of the 
originality of the product developer/petitioner's concept." However, the petitioner's assertions are 
unpersuasive. The unauthorized reproduction of literature created by other individuals or 
companies undermines the petitioner's credibility, and precludes us from comprehending the true 
nature and scope of the TRN IMCLAP project. 16 It is again emphasized that doubt cast on any 
aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. !d. 
For all of the above reasons, we find that the evidence of record does not sufficiently demonstrate 
that the beneficiary will be assigned to the TRN IMCLAP project, as claimed. Moreover, even if it 
were established that the beneficiary will be assigned to the TRN IMCLAP project, the evidence 
still does not sufficiently describe the duties to be performed by the beneficiary. Consequently, we 
find that the evidence of record does not demonstrate the substantive nature of the proffered 
position and its constituent duties. The failure to establish the substantive nature of the work to be 
performed by the beneficiary precludes a finding that the proffered position satisfies any criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the 
normal minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for a 
common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity 
Even if the petitioner had entered into the new lease for additional workspace as of the time of filing, the 
petitioner still has not explained and documented that this new lease would be sufficient to house the entire 
TRN IMCLAP team in addition to the petitioner's current on-site employees. Both the lease proposal letter 
and the floorplan of the prospective premises are silent as to the maximum occupancy allowed. The 
floorplan shows that the proposed premises have 15 individual offices, and two areas of general office space. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
16 For instance, because the petitioner copied the work of others in its "TRN- IMCLAP - 2014: Intelligent 
Mobile Cloud Application" document, we cannot determine the level of research, planning, and other 
resources that the petitioner has actually devoted to TRN IMCLAP. We also cannot determine which aspects 
of the document are credible and accurately represent the petitioner's work, and which do not. 
Thus, we find that the petitioner's response to this particular concern of the Director (i.e., the petitioner's 
statements and documents focusing on the originality of the petitioner's product) does not fully address the 
questions posed by the unauthorized reproduction of materials. As such, we will not further address these 
aspects of the petitioner's evidence, including the opinion letter from Mr. and the 
petitioner's patent application. 
(b)(6)
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Page 15 
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, as the evidence does not satisfy any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
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 proceeding. 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. 
More specifically, the petition cannot be approved because the evidence does not demonstrate that 
the petitioner qualifies as a United States employer having an employer-employee relationship with 
the beneficiary. As detailed above, the record of proceeding lacks sufficient documentation 
evidencing what exactly the beneficiary would do for the period of time requested or where exactly 
and for whom the beneficiary would be providing services. Given this specific lack of evidence, the 
petitioner has not corroborated who has or will have actual control over the beneficiary's work or 
duties, or the condition and scope of the beneficiary's services. In other words, the petitioner has 
not established whether it has made a bona fide offer of employment to the beneficiary based on the 
evidence of record or that the petitioner, or any other company which it may represent, 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-lB nonimmigrant 
worker). Again and as previously discussed, there is insufficient evidence detailing where the 
beneficiary will work, the specific projects to be performed by the beneficiary, or for which 
company the beneficiary will ultimately perform these services. Therefore, the petition cannot be 
approved for this additional reason. 
V. CONCLUSION AND ORDER 
As set forth above, we find the evidence of record insufficient to establish that the proffered 
position qualifies for classification as a specialty occupation. We also find the evidence of record 
insufficient to demonstrate that the petitioner qualifies as a United States employer that will have an 
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Page 16 
employer-employee relationship with the beneficiary. Accordingly, the appeal will be dismissed 
and the petition denied.n 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd, 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
17 As these issues preclud e a pproval of the petition, we will not address any of the additional deficiencie s we 
have identified on appeal.