dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5238761 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 9, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as an 
"devops engineer" 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 Director of the California Service Center denied the petition, concluding that the proffered 
position does not qualify as a specialty occupation. On appeal, the Petitioner submits additional 
evidence and asserts that the Director erred. 
Upon de nova review, we will dismiss the appeal. 1 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
1 We follow the preponderance of the evidence standard as specified in Matter ofChawathe , 25 I&N Dec. 369, 375-76 
(AAO 2010). 
(]) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). 
II. ANALYSIS 
Upon review of the record in its totality, we conclude that the Petitioner has not sufficiently established 
the substantive nature of the work the Beneficiary would perform during the intended period of 
employment, which precludes the determination of whether the proffered position qualifies as a 
specialty occupation. 2 
When determining whether a position is a specialty occupation, we consider the nature of the business 
offering the employment and the description of the specific duties of the position as it relates to the 
particular employer. To ascertain the salient aspects of the proposed employment, we look to the Form 
1-129, Petition for a Nonimmigrant Worker, and the documents filed in support of the petition. A 
crucial aspect of this matter is whether the Petitioner has submitted sufficient and consistent evidence 
describing the duties of the proffered position such that we may discern the nature of the position and 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge attained through at least a baccalaureate degree in a specific discipline. Here, 
we find that the Petitioner has provided inconsistent information regarding the proffered position. 
The Petitioner describes itself primarily as "a leading software application development and consulting 
company serving the ever-growing demand for IT project execution and staffing needs of our clients." 
However, the Petitioner stated that the Beneficiary would work on its in-house project, which it 
describes as "a crypto currency [sic] exchange that provides a platform for users to trade and store 
various leading cryptocurrencies available in the market," not on a client project. 
2 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
The Petitioner provided inconsistent information regarding the duties of the proffered position and the 
academic qualifications required to perform them. Initially, the Petitioner described the position's 
four main duty categories, and the percentage of the Beneficiary's time required to perform them, as 
follows: 
• Requirement Gathering - 20% of the time; 
• Design, develop, modify and install the software application- 60% of [the] time; 
• Testing the applications - 10% of [ the time]; and 
• Mentoring - 10% [ of the time]. 3 
The Petitioner initially stated that the position requires "at least a Bachelor's degree in Computer 
Science, Electronics and Communications Engineering, Management Information Systems, or 
Technology and Engineering related field." However, in response to the Director's request for 
evidence (RFE), the Petitioner stated that the minimum requirement for the position is a "Master's in 
computer science or relevant and [sic] two years of software engineering experience." 
The record does not reconcile why the Petitioner increased the minimum academic level required for 
the position from a bachelor's degree to a master's degree between filing the petition and responding 
to the Director's RFE. Doubt cast on any aspect of a petitioner's evidence may undermine the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of 
Ho, 19 I&N Dec. 582, 591 (BIA 1988). In this case, the inconsistent information regarding the 
academic requirements to perform the position's duties casts doubt on the reliability of the information 
provided by the Petitioner. 
Moreover, in addition to increasing the academic requirement in response to the Director's RFE, the 
Petitioner altered the number of duty categories, the corresponding duties, and the percentage of the 
Beneficiary's time required to perform them, as follows: 
• System Analysis & Requirements gathering [10%];4 
• Design and Implement [15%]; 
• Design, Develop, Modify and Install Software Applications [5%]; 
• Data Reporting and Analysis [5%]; 
• Contracts Validation [5%]; 
• DB Updates for accessing systems [10%]; 
• Build and deployment [5%]; 
• Programming language [5%]; 
• Scripting language [5%]; 
3 The Petitioner listed duties for each of the four categories. Although we omit the duties for brevity, we have reviewed 
them in their entirety. 
4 The Petitioner initially assigned the percentage of the Beneficiary's time to complete the four main groups. without 
specifying the amount of time to perform the individual duties within each group. In response to the Director's RFE. the 
Petitioner increased the main groups of duties to 10 and listed specific duties in spreadsheet cells. The Petitioner stated 
that each group of duties in a spreadsheet cell would require 5% of the Beneficiary's time to perform. The totals above 
for the main duty groups is the sum of the percentage of time allocated for the separately listed duties. Again, although 
we omit the duties for brevity. we have reviewed them in their entirety. 
3 
• Deployment activity [5%]; and 
• Testing Criteria [30%]. 
We first note that the Petitioner reduced the percentage of the Beneficiary's time required to gather 
requirements in half: from 20% to 10%, and the Petitioner tripled the percentage of the Beneficiary's 
time required to test the project, from 10% to 30%. Second, the initial main duty of "Mentoring," 
requiring 10% of the Beneficiary's time to perform, either disappeared or was absorbed-in part-in 
response to the Director's RFE. The Petitioner initially stated that the individual duties in the 
"Mentoring" category would be as follows: 
• Recommend solutions based on business and data knowledge; 
• Create documentation for all new changes to ensure ease of ongoing maintenance, 
recommend new standards as necessary; [ and] 
• Provide training and support for users to ensure they can successfully utilize our 
tools. 
The Petitioner stated in response to the RFE that the Beneficiary would"[ d]evelop technical solutions 
by coordination with internal project teams and understanding of requirements," which is similar to 
the first "Mentoring" duty of recommending solutions based on business and data knowledge; 
however, the Petitioner listed that as a duty in the "Design and Implement" category. However, the 
Petitioner omitted the two remaining "Mentoring" duties-creating documentation for new changes 
and providing training and support for users-in response to the RFE. The record does not reconcile 
why the Petitioner initially stated that the Beneficiary would create documentation and provide 
training and support for users but later omitted those tasks. 
Furthermore, although several of the new duties the Petitioner created between filing the petition and 
responding to the Director's RFE may correspond to the initial main category of "Design, develop, 
modify and install the software application," at least one new duty category does not, indicating that 
the Petitioner added a new duty after filing the petition. The Petitioner describes the duties of the new 
category, "Contracts Validation," as follows: 
Design and maintain source codes repository of multiple development applications 
using GIT and Subversion (SVN) to validate the contracts in various formats and file 
types from various vendors with contracts database in the server. Resolve merging 
[sic] issues during rebasing and re-integrating branches by conducting meetings with 
Development Team Leads. Managing production and non-production servers using 
[ A ]nsible to install and update system, application configurations, [sic]. 5 
The Petitioner's initial duty description excludes duties such as designing and maintaining a source 
codes repository to validate contracts, resolving emerging issues during rebasing and reintegrating 
branches, and managing production and non-production servers. Therefore, in addition to omitting 
"Mentoring" duties in response to the RFE, the Petitioner created a new category of duties regarding 
contracts validation. 
5 The Petitioner listed these as one duty, requiring 5% of the Beneficiary's time to perform. 
4 
A petitioner must establish eligibility for the benefit sought at the time the petition is filed. 8 C.F.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'l 
Comm'r 1978). 
The extent of the inconsistencies among the Petitioner's initial duty description and the description 
provided in response to the Director's RFE, like the inconsistent information regarding the academic 
requirements to perform the position's duties, cast doubt on the reliability of the information. See 
Matter of Ho, 19 I&N Dec. at 591. Furthermore, the inconsistent information limits our ability to 
understand the substantive nature of the proffered position. 
Even if the Petitioner consistently described the duties of the proffered position and the academic 
requirements to perform them, the record raises farther questions regarding the actual work the 
Beneficiary would perform. Although the record contains documents described as "screenshots of 
application code," the documents are blurry and illegible. Accordingly, we are unable to review that 
evidence in order to assist us in understanding the position's substantive nature. 
Additionally, although the record contains documentation that the Petitioner registered a trademark 
for the in-house project, called C-, described in relevant part as "providing peer-to-peer digital 
currency exchange services," publicly available information regarding that trademark provided by the 
U.S. Patent and Trademark Office reports that the Petitioner abandoned the trademark on August 26, 
2019. That information raises questions regarding whether the Petitioner is developing the project 
described in the record. 6 
The record contains documents the Petitioner describes as "[s]creenshots from [C-'s] website" and 
"[C-] Web portal Screens." However, during a 42-day period in November and December 2019, and 
January 2020, we attempted to access the website for the Petitioner's project, using the URL provided 
on several documents in the record, including those screenshots and the project's product development 
plan, and provided in a search engine's response for a query of the product's name. Each attempt to 
access the website for C- resulted in an error message, stating that "[ t ]he webpage ... might be 
temporarily down or it may have moved permanently to a new web address." Although the Petitioner 
resubmits the same product development plan on appeal, the record does not establish whether the 
Petitioner moved the website to a new address. The inability to access the website for the project on 
which the Beneficiary would work raises questions regarding the actual work the Beneficiary would 
perform and, therefore, the substantive nature of the position. 7 
6 Moreover, another entity, S-T-, states on its website that its latest projects include "[C-] Portal," which it describes as a 
"Decentralised [sic] Crypto Exchange," "[C-] Mobile Pay," and the "[C-] Payment Gateway," using the trademark that the 
Petitioner abandoned in August 2019 to describe projects similar to the Petitioner's "peer-to-peer digital currency exchange 
services." However. the copyright information on S-T-'s website dates that information in 2018, before the Petitioner 
abandoned the trademark. The record does not establish that the Petitioner does business under the alias S-T-. The 
Petitioner's abandonment of the trademark for the stated in-house project on which the Beneficiary would work, and 
another entity claiming that its latest projects included three separate projects using the C- name before the Petitioner 
abandoned the trademark. raise questions regarding whether the Petitioner is actually developing the C- projects. 
7 We further note that, even if the Petitioner established the substantive nature of the position, the record raises questions 
regarding whether the Petitioner would have the ability to pay the Beneficiary. On the H-1 B petition, the Petitioner states 
that it had 14 current employees in the United States. The Petitioner reports that its gross income in 2016 was $392,031; 
5 
In summation, we conclude that the inconsistencies in the record raise questions regarding the actual 
substantive nature of the proffered position, which therefore precludes a conclusion that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because the substantive nature of the 
work determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position and 
thus appropriate for review for a common degree requirement, under the first alternate prong of criterion 
2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a degree or 
its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and complexity 
of the specific duties, which is the focus of criterion 4. 8 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
however, it does not provide a more cunent gross income, or a net income for any year. The Petitioner also asserts that it 
would pay the Beneficiary $109,325 or approximately 28% of its reported annual gross income. Accordingly, the size of 
the Petitioner's U.S. workforce, the amount of its reported annual income, and the lack of information regarding its gross 
income raise questions regarding whether the Petitioner would be able to afford to pay the Beneficiary 28% of its reported 
annual gross income. 
8 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
6