dismissed H-1B Case: It Services

(b)(6)
DATE: JUL 3 1 2015 
INRE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Cltizenship and Immigration Service' 
Administrative Appeals Office 
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 10l(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. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3(2015 www.uscis.gov 
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Page 2 
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 "IT Services and Solutions" company established in . In order to employ the 
beneficiary in what it designates as a full-time "Computer 
Programmer Analyst" position at a salary 
of $80,000 per year, the petitioner seeks to classify her 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 
October 1, 2014 to September 5, 2017 at its business address of n 
_, 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, concluding that the evidence of record did not establish that the 
petitioner will have a valid employer-employee relationship with the beneficiary. 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. Beyond the Director's decision, we have identified additional grounds of ineligibility, 
i.e., that the evidence does not demonstrate that the proffered position qualifies for classification as 
a specialty occupation, and that the beneficiary qualifies to perform services in a specialty 
occupation. 1 Accordingly, the appeal will be dismissed, and the petition will be denied. 
II. THE PROFFERED POSITION 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a "Computer Programmer," 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 20, 2014, the petitioner provided an overview of the proffered position and 
its constituent duties, stating that the beneficiary's job duties include the following: 
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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• Analyze, develop and write complex high-end, mlsszon critical role-based 
computer programs requiring high degree of security and computational ability. 
• Work with project architect and /or technical lead to confirm and substantiate 
functional, technical designs, and project specifications. 
• Perform projects using open-source technologies. 
• Review and analyze complex programming specifications to resolve any possible 
misunderstandings. 
• Perform application programming assignments, typically maintenance or 
modification of existing systems. 
• Enforce coding standards and deploy new technologies as needed 
• Install new and improved application systems-enhancement, compilation, and 
testing. 
• Utilize appropriate software tools to develop, document, test and debug 
programs /objects. 
• Create procedures and batch processing control statements, user materials, 
documentation , and moving programs into production mode. 
• Understand and realize the design document using applicable Design Patterns. 
• Provide various reusable Design approaches to solve business functionalities for 
various modules. 
• Implement Web Services; develop business logic and test cases. 
• Involve in Developer Testing during application release every month. 
• Perform various forms of testing- unit, string, system, acceptance, volume, etc., to 
ensure that desired test results are achieved. 
• Troubleshoot applications. 
(Verbatim.) 
In the same letter, the petitioner stated that "ftlhe beneficiary will work at [the petitioner's] office 
premises at , NJ on the project. is the most complete mobile app 
for automation projects . 
. . . This is not an offsite position . . . . The beneficiary will be supervised 
at [the petitioner's office] by Mr. President." 
With regard to the minimum educational requirement for the proffered position, the petitioner stated 
that "[ o ]ur company consistently requires that the Computer Programmer Analysts working for our 
company possess the usual minimum requirements for performance of job duties namely Bachelor's 
degree in Computer Science, Information Systems, Engineering, Business Administration, or 
related field of study." 
In a separate letter dated March 15, 2014, the petitioner confirmed that the beneficiary "will be 
serving in the role of Computer Programmer on the . _ 
project for [the petitioner]" and that the beneficiary will work on this project at the petitioner 's 
office at , Suite in , New Jersey. The petitioner further stated 
that the beneficiary will be directly supervised by , Project Manager on the 
project. The petitioner reiterated the same job duties and minimum educational 
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requirements as listed in its March 20, 2014 letter. 
The petitioner also submitted a series of letters describing the beneficiary's responsibilities during 
different phases of the project. The first in this series of letters describes the 
beneficiary's 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 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 -
• Manage a variety of programming and design staff according to project(s) 
scheduled. 
(Verbatim.) 
The second in these 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 these series of documents describes the beneficiary's responsibilities during the 
"Technical Design/Implementation/Testing" phases of the project, which would last from December 
5, 2014 to March 30, 2015, as follows: 
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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 these 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 
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 
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• 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.) 
In response to the Director's request for a more detailed job description of the work to be performed 
by the beneficiary with the percentage of time to be spent on each duty, the petitioner reiterated the 
same job duties as listed in its March 20, 2014 and March 15, 2014 letters, and indicated that the 
beneficiary will spend 100% of her time on these duties. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
The primary issue to be addressed is whether the petitioner has established that it qualifies as a 
United States employer that will have an employer-employee relationship with the beneficiary. 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an alien: 
subject to section 212G)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) .. 
. , who meets the requirements for the occupation specified in section 214(i)(2) .. 
. , and with respect to whom the Secretary of Labor determines and certifies to the 
[Secretary of Homeland Security] that the intending employer has filed with the 
Secretary [of Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
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(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
Although "United States employer" is defined in the regulations at 8 C.P.R.§ 214.2(h)(4)(ii), the terms 
"employee" and "employer-employee relationship" are not defined for purposes of the H-1B visa 
classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that an alien coming to the United 
States to perform services in a specialty occupation will have an "intending employer" who will file a 
Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(1) of the Act, 8 
U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-lB "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of the Act, 
8 U.S.C. § 1182(n)(1)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United States 
employers" must file a Petition for a Nonimmigrant Worker (Form I-129) in order to classify aliens as 
H-lB temporary "employees." 8 C.P.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United 
States employer" indicates in its second prong that the petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-lB beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.P.R.§ 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and 
Immigration Services (USCIS) defined the terms "employee" or "employer-employee relationship" by 
regulation for purposes of the H-lB visa classification, even though the regulation describes H-lB 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." !d. Therefore, for purposes of the H-lB visa classification, these terms are 
undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common 
law of agency, we consider the hiring partis right to control the manner and means 
by which the product is accomplished. Among the other factors relevant to this 
inquiry are the skill required; the source of the instrumentalities and tools; the 
location of the work; the duration of the relationship between the parties; whether 
the hiring party has the right to assign additional projects to the hired party; the 
extent of the hired party's discretion over when and how long to work; the method 
of payment; the hired party's role in hiring and paying assistants; whether the work 
is part of the regular business of the hiring party; whether the hiring party is in 
business; the provision of employee benefits; and the tax treatment of the hired 
party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non- Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(b)(6)
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(hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of America, 390 U.S. 254,258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 2 
Specifically, the regulatory definition of "United States employer" requires H-lB employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B employers and employees to have an 
"employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf. 
Darden, 503 U.S. at 318-319? 
2 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping , Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. 
denied , 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc . v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
3 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless '"plainly 
erroneous or inconsistent with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(b)(6)
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Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.P.R.§ 214.2(h). 4 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 
C.P.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... "(emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(1) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" ofH-1B nurses under 8.C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-449; New Compliance Manual at§ 2-III(A)(1). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
4 
That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. 
at 323-324. For example, while the assignment of additional projects is dependent on who has the 
right to assign them, it is the actual source of the instrumentalities and tools that must be examined, 
and not who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' /d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the petitioner will be a "United States employer" having an "employer-employee 
relationship" with the beneficiary as an H-lB temporary "employee." More specifically, the 
petitioner has not submitted sufficient, credible evidence to establish that the beneficiary will be 
exclusively assigned to its in-house project, as claimed. 
There are numerous deficiencies and discrepancies which undermine the credibility of the 
petitioner's descriptions of the proffered position and the beneficiary's assignment. For instance, 
despite the petitioner's assertion that the beneficiary will be exclusively assigned to its in-house 
project, the petitioner stated in its March 20, 2014 letter that the beneficiary will 
analyze, develop, and write "computer programs," perform "projects," perform "application 
programming assignments, typically maintenance or modification of existing systems," and 
troubleshoot "applications" (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 mobile application -
that is being developed through the 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 
project. Further, the petitioner has not articulated the nature of the beneficiary's 
work on existing systems, considering that the ~ ~-~. ~~·~-~· ~ project seeks to develop a new 
mobile application. 
Moreover, the petitioner repeatedly referenced unspecified clients and end-users to whom the 
beneficiary will provide her 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 
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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 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 
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 ' 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 further undermine the petitioner's assertion that the beneficiary will 
be exclusive! y assigned to the project, and raise additional questions as to the actual 
nature of the proffered position. 
Furthermore, 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 
project. 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 "provide technical support" and how these duties 
specifically relate to the 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 these Business Process 
Management and Enterprise Application modules are, and how they relate to 
Notably, there are no specific references to the Business Process Management and Enterprise 
Application modules within the documents. 
We note that in the petitioner's response to the RFE, the petitioner indicated that the beneficiary will 
spend 100% of her time on the job duties previously listed in its March 20, 2014 and 
March 15, 2014 letters. However, the petitioner also listed numerous other job duties that are not 
included in the March 20, 2014 and March 15, 2014 letters, namely, the job duties listed in the 
series of letters describing the beneficiary's responsibilities during different phases of the 
project. The petitioner has not submitted an explanation reconciling this inconsistency, 
and clarifying the beneficiary's actual duties with the percentage of time spent on each duty. 
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 
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comparatively low, entry-level position relative to others within the occupation. 5 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 
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. 6 
5 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 wage 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 
she would be closely supervised; that her work would be closely monitored and reviewed for accuracy; and 
that she would receive specific instructions on required tasks and expected results. 
6 The issue here is that the petitioner's designation of this position 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
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. 
11 
The 
petitioner also stated that the beneficiary will 
11
[i]ncrease sales turnover by 30% by identifying 
commercial opportunities and expanded market share, through the management of various 
organizational, operational and technology changes. 
11 
The 
11
15-1131, Computer Programmers" 
occupational 
classification does not, however, include any sales, marketing, or management-type 
duties.7 Not only are these duties outside of the computer programmers occupational classification, 
but the petitioner has not explained how they specifically relate to the project.8 
7 See O*NET Details Report, 15-1131, Computer Programmers, http://www.onetonline.org/link/details/15-
1131.00 (last visited July 22, 2015). 
8 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 SWA 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. 
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.F.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), 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
The petitioner submitted a document entitled " - 2014: 
" and a technical document entitled " 
" 9 However, it is not evident how these documents constitute 
evidence of the beneficiary's assignment, as 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. 10 
The petitioner also submitted a document entitled " Product Development 
Differentiators & Timeline- 2014." Like the two documents referenced above, this document 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 
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. 
9 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, ' 
- 2014: _ " lists the milestones as: (1) Product Design (10/5/14 
to 11/5/14); (2) Software Analysis (11/5/14 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, ' _ ," 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). 
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. 
10 Again, we note that one document states that 10 programmer analysts are needed, while the other states 
that 22 are needed. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
above-listed teams or positions. 11 These overlapping duties raise additional questions regarding the 
actual role of the proffered position in the project. 
There are also discrepancies regarding who will directly supervise the beneficiary on the 
project. The petitioner specifically stated in its March 20, 2014 letter that "[t]he 
beneficiary will be supervised at [the petitioner's office] by Mr. President." 
However, the petitioner stated in its March 15, 2014 letter and Offer Letter that the beneficiary will 
report to and be directly supervised by Mr. , Project Manager on the 
project, at the petitioner's premises. 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). The same organizational chart indicates that 
Mr. L, President, does not directly supervise any computer programmers. The petitioner 
has not explained these inconsistencies. 
Moreover, if the beneficiary will be supervised by Mr. as alternatively asserted by the 
petitioner, then this raises additional questions regarding the beneficiary's claimed assignment to the 
project. That is because Mr. is identified by the petitioner in its list of 
employees and their present work locations pursuant to their LCA as a "Systems Analyst" working 
at . ~ . in , New Jersey. 12 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 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 
11 
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, Analyzing 
and execution of and environments." The Business Analyst is to " [a Jet a liaison between business 
users and technical team developing [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." 
12 In another list of employees submitted on appeal, the petitioner indicated that Mr. 
petitioner in 2014. 
joined the 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
project, at the petitioner's premises at in Suite m , New 
Jersey. In particular, the petitioner stated on appeal that its current premises at Suite 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. 13 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 team. As outlined in the evidence of record, the 
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 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 ' 
project overall. 14 
Finally, we find 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 
13 The floorplan of the petitioner's current premises consists of five (5) individual offices and one general 
office area of 688 square feet. 
14 
The petitioner also indicated that it can enter into a new lease for additional workspace, as needed, located 
at · , Suite in New Jersey. However, the petitioner must establish 
eligibility at the time of filing. 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. Comm'r 1978). 
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 
· 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 l&N Dec. 190 (Reg. Comm'r 1972)). 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
project. 15 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. I d. 
In summary, we find that the record of proceeding lacks sufficient documentation evidencing that 
the beneficiary will be exclusively assigned to the petitioner's in-house project, as 
claimed. The record of proceeding thus does not reflect what exactly the beneficiary will do for the 
period of time requested or where exactly and for whom the beneficiary will 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. 16 
As the evidence of record is insufficient to demonstrate that the petitioner qualifies as a United 
States employer having an employer-employee relationship with the beneficiary, the petition must 
be denied. 
IV. SPECIALTY OCCUPATION 
Beyond the Director's decision, we also find that the evidence of record is insufficient to establish 
15 For instance, because the petitioner copied the work of others in its ' - 2014: 
_ _ " document, we cannot determine the level of research, planning, and other 
resources that the petitioner has actually devoted to 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. 
16 The Director's conclusion that all of the petitioner's employees are contractors due to the petitioner's 
inclusion of their salaries in cost of goods sold (as opposed to deductions for wages) is not supported by 
further explanation. It is not clear whether the Director considered the petitioner's previous explanation that 
"Cost of Goods Sold (COGS) is the category of expenses directly related to producing a service. It includes 
all the costs directly involved in delivering a service. These costs can include labor, material, and shipping." 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
that the proffered position qualifies for classification as a specialty occupation. 17 
For the reasons discussed above, 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 therefore 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 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. 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. 
Furthermore, even if the petitioner were able to establish the substantive nature of the work to be 
performed by the beneficiary, we still could not find that the proffered the proffered position 
qualifies as a specialty occupation. Specifically, the petitioner asserts that the proffered position 
can be satisfied by a degree in "Business Administration, or related field of study." 
The claimed requirement of a degree in Business Administration for the proffered position, without 
specialization, is inadequate to establish that the proposed position qualifies as a specialty 
occupation. The petitioner must demonstrate that the proffered position requires a precise and 
specific course of study that relates directly and closely to the position in question. Since there 
must be a close correlation between the required specialized studies and the position, the 
requirement of a degree with a generalized title, such as business administration, without further 
specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz 
Associates, 19 I&N Dec. 558 (Comm'r 1988). See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 
(1st Cir. 2007). 18 
17 Since the above-identified basis for denial is dispositive of the petitioner's appeal, we need not address 
other grounds of ineligibility we observe in the record of proceeding. Nevertheless, we will briefly note and 
summarize them here with the hope and intention that, if the petitioner seeks again to employ the beneficiary 
or another individual as an H-1B employee in the proffered position, it will submit sufficient independent 
objective evidence to address and overcome these additional grounds in any future filing. 
18 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not justify the granting 
of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 
F.Supp.2d 172, 175-76 (D.Mass.2000); Shanti, 36 F. Supp.2d at 1164-66; cf Matter of 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
While the petitioner submitted an "Expert Opinion Letter" from Dr. concluding 
that the duties of the proffered position "require the ability to apply the knowledge associated with 
the attainment of a bachelor's-level degree in Computer Science, Information Technology or a 
closely related field," we accord little probative weight to this letter. Among other deficiencies, Dr. 
letter does not sufficiently explain the factual basis for his conclusions, does not specify 
which particular job duties and other salient aspects of the proffered position he relied upon in 
coming to his conclusion, and does not mention at all. Where an opinion is not in 
accord with other information or is in any way questionable, we are not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). 
For all of the reasons specified above, the evidence of record does not 
proffered position qualifies for classification as a specialty occupation. 
dismissed and the petition denied for this additional reason. 
V. BENEFICIARY QUALIFICATIONS 
demonstrate that the 
The appeal will be 
The petition also cannot be approved because the evidence does not demonstrate that the 
beneficiary is qualified to perform services in a specialty occupation. 19 That is, the petitioner has 
not submitted a sufficient evaluation of the beneficiary's foreign degree or other evidence that meets 
the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(D). 
Here, the petitioner submitted an "Evaluation of Training, Education, and Experience" from the 
Trustforte Corporation stating that the beneficiary has the educational equivalent in the United 
States to a Bachelor of Science Degree in Computer Information Systems based on a combination 
of her education and employment experience.Z0 However, 8 C.F.R. § 214.2(h)( 4)(iii)(D)(3) allows 
for "[a ]n evaluation of education by a reliable credentials evaluation service which specializes in 
evaluating foreign educational credentials (emphasis added)." In accordance with this provision, we 
will accept a credential evaluation service's evaluation of education only, not training and/or work 
experience. Furthermore, while the petitioner submitted several documents pertaining to the 
beneficiary's past employment, the petitioner has not submitted an explanation of how these 
documents establish eligibility under 8 C.P.R. § 214.2(h)(4)(iii)(D)(5) or any other provisions at 
8 C.F.R. § 214.2(h)(4)(iii)(D). 21 As sufficient evidence has not been presented that the beneficiary 
I d. 
Michael Hertz Assocs., 19 I & N Dec. 558, 560 ([Comm'r] 1988) (providing frequently cited 
analysis in connection with a conceptually similar provision). 
19 See supra footnote 17. 
20 This evaluation states that the beneficiary "completed the equivalent of three years of academic studies 
leading to a Bachelor of Science Degree in the field of Computer Information Systems." 
21 8 C.P.R. § 214.2(h )( 4)(iii)(D)(5) requires the petitioner to "clearly demonstrate[]" that the beneficiary's 
work experience included the theoretical and practical application of specialized knowledge required by the 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
has at least a U.S. bachelor's degree in a specific specialty, or its equivalent, the petition could not 
be approved even if eligibility for the benefit sought had been otherwise established. 
VI. CONCLUSION AND ORDER 
As set forth above, we find the evidence of record insufficient to establish that the petitiOner 
qualifies as a United States employer that will have an employer-employee relationship with the 
beneficiary. We also find the evidence of record insufficient to establish that the proffered position 
qualifies for classification as a specialty occupation, and that the beneficiary is qualified to perform 
services in a specialty occupation. Accordingly, the appeal will be dismissed and the petition 
denied.Z2 
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), aff'd, 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, aff'd, 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
specialty occupation, and was gained while working with peers, supervisors, or subordinates who have a 
degree or its equivalent in the specialty occupation. It also requires the petitioner to demonstrate that the 
beneficiary has recognition of expertise in the specialty as evidenced by at least one type of specific 
documentation, such as recognition of expertise in the specialty occupation by at least two recognized 
authorities in the same specialty occupation. Merely submitting the beneficiary's employment contracts, 
resignation letters, and/or other similar documentation from prior employers, without more, is insufficient to 
meet all of the specific requirements set forth in 8 C.P.R.§ 214.2(h)(4)(iii)(D)(5). 
22 As these issues preclude approval of the petition, we will not address any of the additional deficiencies we 
have identified on appeal.