dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9046553 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2020 
The Petitioner, an information technology company, seeks to temporarily employ the Beneficiary as a 
"software developer" under the H- lB nonimmigrant classification for specialty occupations. 
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 record did not 
establish that the Beneficiary is qualified to perform the duties of the proffered position. 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. LEGAL FRAMEWORK 
Section 214(i)(2) of the Act, 8 U. S.C. § 1184(i)(2), states that an individual applying for classification 
as an H-lB nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation , 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214(i)(2) of the Act, the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(C) states that 
a beneficiary must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted State license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately 
engaged in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and have recognition of expertise in 
the specialty through progressively responsible positions directly related to the 
specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.F.R. § 214.2(h)(4)(iii)(D) require one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit 
for training and/or experience in the specialty at an accredited college or 
university which has a program for granting such credit based on an individual's 
training and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special 
credit programs, such as the College Level Examination Program (CLEP), or 
Program on Noncollegiate Sponsored Instmction (PONS!); 
(3) An evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; 
( 4) Evidence of certification or registration from a nationally-recognized 
professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have 
achieved a certain level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combination of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation 
as a result of such training and experience .... 
2 
II. ANALYSIS 
On appeal, the Petitioner does not assert, and the record does not support the conclusion, that the 
Beneficiary holds a U.S. bachelor's or higher degree; that the Beneficiary's foreign degree alone 
qualifies the Beneficiary to perform the duties of the proffered position; or that a state license, 
registration, or certification may authorize the Beneficiary to fully practice in the specialty 
occupation. 1 Therefore, the record does not satisfy one of the criteria at 8 C.F .R. 
§ 214.2(h)(4)(iii)(C)(J)-(3). Instead, the Petitioner asserts that "the combined academic course work 
[sic] and more than 8.6 year [sic] of professional work experience qualifies [the Beneficiary]" to 
perform the duties of the proffered position. Accordingly, we limit our analysis to the criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(C)(4), which m tum depends on the criteria at 8 C.F.R. 
§ 214.2(h)( 4)(iii)(D)(J)-(5). 
The record does not contain results of recognized college-level equivalency examinations or special 
credit program; an evaluation of education by a reliable credentials evaluation service which 
specializes in evaluating foreign educational credentials; or evidence of certification or registration 
from a nationally-recognized professional association or society for the specialty that is known to grant 
certification or registration to persons in the occupational specialty who have achieved a certain level 
of competence in the specialty. Therefore, the record does not satisfy one of the criteria at 8 C.F.R. 
214.2 h 4 iii D)(2)-(4). Instead, on appeal, the Petitioner asse1is that opinion letters fromD 
"r--------~a_n--.adjunct professor of business statistics economics, and computer applications; 
~---------' a professor of computer science at r=-=i1 Jnjyer~ity; and,__ ______ _., 
a professor of applied management and decision science~,__-~! University, establish that the 
Beneficiary's "education and work experience qualifies him" for the proffered position. 
Although the Petitioner submitted the letter from I I in resnonse to the Director's request for 
evidence (RFE), the record did not contain the letters froml J andl I at the time 
of the Director's decision. The Petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The 
Petitioner did not submit the requested evidence that it now submits on appeal. We will not consider 
the evidence submitted for the first time on appeal, specifically the letters froml I and D I I for any purpose. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); see also Matter 
of Obaigbena, 19 I&N Dec. 533, 53 7 (BIA 1988). The appeal will be adjudicated based on the record 
of proceedings before the Director. Accordingly, we limit our analysi~ of 8 C f .R. 
§ 214.2(h)(4)(iii)(C)( 4) and 8 C.F.R. § 214.2(h)(4)(iii)(D)(J) to the opinion letter froml,_ __ ___,land 
the evidence it addresses. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter 
of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we may give an opinion less 
weight if it is not in accord with other information in the record or if it is in any way questionable. 
Id. We are ultimately responsible for making the final determination regarding an individual's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence 
1 The Petitioner submitted documentation to support the H-1B 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. 
3 
of eligibility. Id.; see also Matter of V-K-, 24 l&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion 
testimony, while undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but 
rather is admissible only if 'it will assist the trier of fact to understand the evidence or to determine a 
fact in issue."'). 
~---~I based his analysis, in part, on what he described as the Beneficiaiy' s foreign "Bachelor's 
Degree with DUAL MAJORS in Electronics Engineering & Computer Science" (emphasis original). 
However, the degree in the record, awarded to the Beneficiary, indicates that it is a "Bachelor of 
Engineering [in] Electronics & Communication Engg." The degree does not reference computer 
science. Elsewhere in his letter,I I refers to the Beneficiary's degree as a "Bachelor of 
Engineering in Electronics & Communication Engineering," similarly not referencing computer 
science. Therefore, I Is references to the Beneficiaiy' s degree are both internally 
inconsistent and conflict with evidence in the record, limiting the extent to which he appears to be 
familiar with the Beneficiary's qualifications. Furthermore, as noted above, the record does not 
contain an evaluation of the Beneficiary's foreign education by a reliable credentials evaluation service 
which specializes in evaluating foreign educational credentials, in order to establish what type of U.S. 
bachelor's degree, if any, to which the Beneficiary's foreign degree may be equivalent. 
I I also asserted in his opinion letter that the Beneficiary's "[J]rofessional work experience in 
the field of [ c ]omputer [ s ]cience" totaled" 12.10 years." Specifically, I dete1mined that" 1.6 
years" working as an "[a]nalyst [p]rogrammer," "5.9 years" working as a "[s]enior [s]ubject [m]atter 
[ e ]xpert," and "5. 7 years" working as an "[a]pplication [a]rchitect" totaled "12.10 years." However, 
that time period would total 13.2 years, not 12.10 years. I I also notes that the respective 
employment occurred continuously from November 2006 through September 2019, when he dated his 
opinion letter, among three employers. However, that period is 12 years and 10 months, neither 12.10 
nor 13.2 years. Moreover, as noted above, on appeal the Petitioner asserts that only "8.6 year [sic] of 
professional work experience" may apply toward establishing the Beneficiary's qualifications, which 
conflicts with I ts opinion. Again, based on statements in the opinion letter that are 
inconsistent with information in the record, I Is familiarity with the Beneficiary's 
qualifications appears limited. 
Regardless of the inconsistencies between I I's calculation of the Beneficiary's relevant 
experience, the record must establish that the Beneficiary has "recognition of expe1iise in the specialty 
through progressively responsible positions directly related to the specialty" to satisfy 8 C.F.R 
§ 214.2(h)(4)(iii)(C)( 4). At the time of the Director's decision, the record contained a half-page letter 
from a company that states it has employed the Beneficiary since May 2014 in the "position of 
[a]pplication [a]rchitect." 2 However, it does not describe the Beneficiary's responsibilities in that 
pos1t10n. Furthermore, the letter does not otherwise indicate whether the Beneficiary holds 
"recognition of expertise." The record also contains a half-page letter from a company that states it 
employed the Beneficiary as a "Programming Sr. SME" from "30th June 2008 to 23rd May 2014."3 
However, like the other letter, it does not describe the Beneficiary's responsibilities, nor does it 
indicate whether the Beneficiary holds "recognition of expe1iise." Accordingly, neither letter provides 
2 We note thcitl , Is assertion is inconsistent with this employment period, reducing its probative value. See Matter 
of Caron Jnt'l. Jnc., 19 I&N Dec. at 795. I !asserts that this employment period began in February. 
3 In contrastl I asserts that this employment period ended in January. 
4 
sufficient information for us to determine whether the Beneficiary's responsibilities in either position 
progressed from a prior position. FurthermoreJ I does not address whether information from 
the Beneficiary's prior employers establish recognition of expertise in the specialty through 
progressively responsible positions directly related to the specialty, as required by 8 C.F.R. 
§ 214.2(h)(4)(iii)(C)(4). As noted above, opinion statements do not purport to be evidence of facts 
that are not otherwise established in the record; they may assist us in understanding evidence in the 
record. See Matter ofV-K-, 24 I&N Dec. at 502 n.2. 
On appeal, the Petitioner submits new letters from the companies. 4 However, the Director's RFE 
specifically requested, in relevant part, "[ d]ocumentary evidence showing twelve years of specialized 
training, and/or progressively responsible work experience in the field related to the specialty." 
Accordingly, the Petitioner was put on notice of required evidence and given a reasonable opportunity 
to provide it for the record before the visa petition was adjudicated. The Petitioner did not submit the 
requested evidence that it now submits on appeal. We will not consider the evidence submitted for 
the first time on appeal, specifically the new letters from the Beneficiary's prior employers, for any 
purpose. See Matter ofSoriano, 19 I&N Dec. at 766; see also Matter ofObaigbena, 19 I&N Dec. at 
537. 
In summation, the record, at the time of the Director's decision, did not establish, through an 
"evaluation from an official who has authority to grant college-level credit for training and/or 
experience in the specialty at an accredited college or university which has a program for granting 
such credit based on an individual's training and/or work experience," that the Beneficiary had 
"education, specialized training, and/or progressively responsible experience that is equivalent to 
completion of a United States baccalaureate or higher degree in the specialty occupation, and have 
recognition of expertise in the specialty through progressively responsible positions directly related to 
the specialty." Therefore, the record, at the time of the Director's decision, did not satisfy the criteria 
at 8 C.F.R. §§ 2 l 4.2(h)( 4)(iii)(C)( 4), (D)(J). Furthermore, for the reasons discussed above, the record 
does not support the conclusion that the Beneficiaiy possesses "the equivalent of the degree required 
by the specialty occupation[,] acquired through a combination of education, specialized training, 
and/or work experience in areas related to the specialty and that the alien has achieved recognition of 
expertise in the specialty occupation as a result of such training and experience," as required by 
8 C.F.R. § 214.2(h)(4)(iii)(D)(5). 
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. § 13 61. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
4 The Petitioner also submits on appeal a letter from a company indicating it employed the Beneficiary between November 
2006 and June 2008, conflicting with! Is assertion that the employment period ended in May. Similar to the 
other companies' letters, this letter simply identifies the Beneficiary, the position title, the employment period, and the 
salary, without providing details regarding the position's responsibilities. 
5