dismissed H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 5776819 
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 
"ServiceNow developer" under the H-lB nonimrnigrant 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 
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. 
The Petitioner provided inconsistent information regarding the academic qualifications required to 
perform the position's duties. 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- 50% of [the] time; 
2 The Petitioner submitted documentation to support the H-1 B 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 
• Testing the applications - 20% 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 it "requires at least a Bachelor's/Master's degree in a related 
quantitatively analytical field." The Petitioner repeated that statement in a separate letter submitted in 
support of the appeal. 
The Petitioner's statements in response to the RFE and on appeal regarding the minimum academic 
requirement raise questions regarding whether the position requires at least a bachelor's degree, as 
initially stated, or at least a master's degree. The record does not reconcile why the Petitioner added 
a master's degree to the minimum academic level required for the position 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. 
Furthermore, the inconsistent information limits our ability to understand the substantive nature of the 
proffered position. 
Even if the Petitioner consistently described academic requirements to perform the position's duties, 
the record raises farther questions regarding the actual work the Beneficiary would perform. Although 
the record contains documents the Petitioner describes as "admin screens," they display limited 
information. Each page consists of two screenshots per page, with 10 total screenshots, similar to a 
PowerPoint presentation, with very small text. Three of the 10 screenshots are titled "Orders 
Management," with eight columns and 10 rows. The columns are titled "Serial No," "Date," "User," 
"Amount," "Price," "Commission," "Final Amount," and "Status." Closer review of the screenshots 
reveal that they are screenshots of the same information, displaying the first "10 of 62 units," with 
serial numbers ranging from 1 to 10, and the same dates, user names, amounts, and other data. Even 
if the "admin screens" did not contain triplicates of the same information, they do not convey what the 
Beneficiary would do with access to those "admin screens." They do not explain how, as a 
"ServiceNow developer," the Beneficiary would develop ServiceNow. Specifically, the "admin 
screens" do not display the ability to develop or edit any information on the screens. Instead, they 
indicate that the Beneficiary would simply be able to read the information displayed on the screens. 
Accordingly, the "admin screens" raise questions regarding the substantive nature of the position and 
how the Beneficiary would actually perform the duties described. 
The record also contains documents the Petitioner describes as the project website's "screenshots." 
However, the screenshots do not appear to correspond to the project and, even if they do, they appear 
to be only a template. The screenshots misspell the name of the project at least eight times. 
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. 
3 
Additionally, five pages contain placeholders for the "company logo" and another page contains a 
placeholder for "[the misspelled project name's] logo." Accordingly, the documents described as the 
project website's "screenshots" do not appear to be what the Petitioner states they are. Again, 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. at 591. 
Furthermore, like the "admin screens" discussed above, the "screenshots" do not establish how the 
Beneficiary would perform the duties described in the record rather than simply read the information 
displayed on the "screenshots." 
The record also contains documents the Petitioner describes as "portal screens." Like the other 
documents described above, the "portal screens" are significantly shrunken to fit two screens on one 
page. In addition to containing very small text, most of the information on the "portal screens" 
documents is fuzzy and illegible. However, we can identify the name of the project which, unlike the 
project website's "screenshots," is spelled correctly. The record does not establish the distinction 
between the project website's "screenshots" and the "portal screens" and even if it did, the record does 
not reconcile why the "screenshots" and the "portal screens" spell the project inconsistently. 
Furthermore, like the "admin screens" discussed above, the "portal screens" do not establish how the 
Beneficiary would perform the duties described in the record rather than simply read the information 
displayed on the "portal screens." 4 
In the denial, the Director also noted "when a search is done for [the project's website], there is a 
message stating that the site can't be reached." On appeal, the Petitioner acknowledged that "[the 
Petitioner's] website was not fully functional for brief periods of time (a couple of days) between 
January to March 2019." The Petitioner explained that "[ t ]he team working on the maintenance of the 
website accidentally broke the web code which caused the website crash. It was quickly realized and 
the issue was solved within 40 hours of recognition." The Petitioner elaborated that "[i]t was a 
misfortune that the same issue recurred a few weeks later. It was yet again sorted out by the technical 
team." 
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 
4 Additionally, publicly available information regarding the trademark for the name of the Petitioner's in-house project, 
called C-, described in relevant part as "providing peer-to-peer digital currency exchange services," provided by the U.S. 
Patent and Trademark Office repmts 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. 
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. 
4 
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. 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. 6 
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. 
5 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-lB 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; 
however, it does not provide a more current 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. 
6 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 fu1iher discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
5