dismissed H-1B Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 5383548 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 22, 2020 
The Petitioner, a management consulting services provider, seeks to employ the Beneficiary temporarily 
as a "technical consultant" under the H-IB nonimmigrant classification for specialty occupations. 1 The 
H-IB 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 the Fonn I-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation . On appeal, the Petitioner asserts that the Director did not consider some evidence and 
ultimately erred in denying the petition. 
Upon de nova review , we will dismiss the appeal. 
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 See Immigration and Nationality Act (the Act) section 10l(a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5 )(H)(i)(b) . 
(]) 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. 2 
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. 3 
II. ANALYSIS 
The Petitioner is located in I I California and stated it has a contractual relationship with 
~-;:::=====~(end-client) and the Beneficiary would perform work at the client's offsite location 
i~ I California. The Petitioner requested the Beneficiary's dates of intended employment 
from October 2018 through September 2021. 
Based on a lack of sufficient evidence, we conclude that the Petitioner has not established the 
availability of specialty occupation work, or the actual work the Beneficiary would perform. 
Individually, each of these shortcomings preclude a determination that the proffered position qualifies 
as a specialty occupation under any of the regulatory criteria enumerated at 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)(])-( 4). 
We begin noting that because the Petitioner has not established definitive, non-speculative 
employment for the Beneficiary, the record does not establish that the position described in this 
petition would actually exist as requested. 4 The Petitioner relies on a December 2013 Staff 
Augmentation Services Agreement (master contract) and a letter from the end-client to demonstrate 
both that this position qualifies as a specialty occupation, and that it would provide the work it 
requested in the petition for a 35-month timeframe. 
2 8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 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"); Defensor, 201 F.3d at 
387. 
4 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
A. Contractual Material 
The master contract reflected that the agreement would continue indefinitely until terminated by either 
party. Regarding the agreement's termination, it specified that either party could terminate the 
agreement at any time, with or without cause. Further, this contract signified that the services the 
Petitioner would provide to the end-client would be contained within a Statement of Work (SOW) or 
a similar type of document. The master contract contained a separate provision indicating that in the 
absence of an SOW, the end-client would pay the Petitioner for the services rendered as agreed to in 
writing by the end-client at a specified rate, for which the petitioning organization would issue invoices 
to the client. The end-client letter identified the Beneficiary as a resource, reflected that the work she 
would perform would not fall under any of the SOW s these entities had in place, and listed the offered 
position's duties. 
First, the master contract and the other documentation agreed to in writing form the foll representation 
of the contractual agreement between these parties. As a result, the master contract, of its own accord, 
does not stand alone, and does not sufficiently support the Petitioner's claim that the Beneficiary would 
perform services in a specialty occupation through the duration of the requested H-1 B validity period. 
In other words, the Petitioner should not rely solely on the master contract or its indefinite validity. 
Next, we consider whether the Petitioner has offered evidence relating to work that is not covered by 
an SOW. We reiterate the master contract contained a provision that in the absence of an SOW, the 
end-client would compensate the Petitioner for its services "as agreed to in writing" by the end-client 
at a specified rate, for which the petitioning organization would issue invoices to the client. The 
Petitioner did not provide evidence of any written agreements executed between itself and the 
end-client illustrating the rate the client would pay the petitioning organization in return for the 
Beneficiary's services. As a result, the Petitioner has not offered evidence that comports with the 
master contract for work occurring outside of an SOW. In other words, the record does not establish 
a binding obligation on the part of the end-client to provide any work for the Beneficiary. 5 
Regarding the indefinite nature of the work discussed in the master contract, considering the current 
fact pattern and evidence within the record, such an unspecified and open-ended agreement does not 
demonstrate that the project will be ongoing without probative, corroborating material to establish the 
project's actual, or likely duration. The Petitioner has not presented a basis supported by sufficient 
analysis and probative evidence that demonstrates the prediction is reasonable, by a preponderance of 
the evidence. In general, such predictions should be sufficient for U.S. Citizenship and Immigration 
Services (USCIS) to reasonably deduce whether the prospective work will continue, as requested. 
Basic or conclusory assertions do not provide us with a legitimate basis to determine whether a project 
will continue to require a beneficiary's services, or whether such statements are simply speculation. 6 
Hypothetically, if we were to accept the Petitioner's position that perpetual arrangements are sufficient 
evidence, several years or decades could pass and the petitioning organization could continue to rely 
5 The agency has clearly indicated that it has not historically pe1mitted speculative employment in the H-1 B program. See, e.g., 
63 Fed. Reg. 30,419, 30,419-20 (proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214). 
6 Cf Matter of Ho, 22 l&N Dec. 206, 212-213 (Assoc. Comm'r 1998) (finding that a projected plan must contain sufficient 
detail to permit USCIS to draw reasonable inferences.) "Mere conclusory assertions do not enable the Service to determine 
whether the job-creation projections are any more reliable than hopeful speculation." Id. 
3 
on the old contractual documents without having to demonstrate that such material remains valid. The 
context of the current scenario is not simply a business arrangement to provide services. Instead, the 
Petitioner has entered into such a relationship while simultaneously intending to assign H-lB 
personnel to perform the work. Even though the end-client indicated that the Beneficiary would not 
work under any SOW, it remains the Petitioner's burden to provide probative evidence that 
preponderantly establishes that it will provide qualifying work for the alien for the time period it 
requests on the petition. The end-client's statement that she will not work under an existing SOW does 
not absolve the Petitioner of its responsibilities when applying to employ a foreign worker under the 
H-lB program. Such responsibilities are distinct from those in place when an organization employs a 
U.S. worker. 
Business needs require companies to regularly amend and change previously stipulated plans. A 
contract provides the structure and expectations that allow all contracted entities to plan accordingly. 7 
Understanding that contracts-or similar written agreements as specified in the master contract­
underlie the reliability of business agreements establishes the importance that a petitioner present the 
full spectrum of documentation that binds the involved parties. Not only did the Petitioner fail to 
provide an "in writing" document for the services it would provide to the end-client, but it also did not 
submit invoices or more probative evidence demonstrating that the end-client actually compensated 
the petitioning organization for the services rendered. Moreover, the letter from the end-client did not 
reflect the compensation the Petitioner would receive in exchange for the Beneficiary's services for 
the end-client. We reiterate that U.S. employers take on additional burdens when employing foreign 
nationals in the United States. 
We conclude that the Petitioner has not offered sufficient evidence to support the master contract, and 
as a result, it has not satisfied its burden of proof that a qualifying position would exist for the 
Beneficiary for the period the organization specified in the petition. 
B. Correspondence 
Turning to the end-client letter, we conclude this evidence is insufficient to satisfy the Petitioner's 
burden of proof for multiple reasons. As a preliminary matter, and as recognized by the court in 
Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work is to be performed for 
entities other than a petitioner, evidence of the client companies' job requirements is critical. As a central 
holding, the Defensor court determined that the former Immigration and Naturalization Service acted 
appropriately in interpreting the statute and the regulations as requiring petitioning companies to provide 
probative evidence that the outside entities where the Beneficiary would actually provide their services 
(i.e. end-clients) required candidates to possess a qualifying degree. 8 The scenario in Defensor has 
repeatedly been recognized by Federal Courts as appropriate in determining which entity should provide 
the requirements of an H-lB position and the actual duties a beneficiary would perform.9 
7 See Fletcher v. Peck, IO U.S. 87, 133-34, 137-38 (1810) (describing the standard of adhering to the "obligations binding on 
the parties" within contracts, which if this principle were overturned, the interactions between the involved parities "would be 
very seriously obstructed"). 
8 Defensor, 201 F.3d at 388. 
9 See Altimetrik Corp. v. USCIS, No. 2: 18-cv-11754, at *7 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. USCIS, 
No. 13-1209-CV-W-ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, 
4 
Absent from the end-client letter are any prerequisites it requires to perform the duties we discuss below. 
Among those missing mandatory requirements are any education requirements for prospective 
candidates, even though the Director's request for evidence (RFE) notified the Petitioner that this 
information should be included in any end-client letter. Additionally, the remaining material within the 
record does not reflect what the end-client requires as a prerequisite for the proffered position. This lack 
of information alone is sufficient to preclude the petition's approval, as the Petitioner has not 
demonstrated that the offered position satisfies the definition of a specialty occupation found at section 
214(i)(l) of the Act. 
Moving on to the duties, we agree with the Director that the functions within the end-client letter were 
presented in a general and overly vague manner when considered in their totality. The end-client stated 
the duties would consist of the following: 
1. Work with Business Analyst to ensure successful product delivery (10%); 
2. Design, develop, deliver, and manage proof of concept ( 5% ); 
3. Prepare presentation and case studies for the completed work (10%) 
o Capture queries and provide answers comprehensively. 
4. Creating suitable document and use effective channels for training customers on the solution 
delivered (5%); 
5. Analyze and understand specifications and requirements provided by customer to determine 
feasibility of design and implement within time line with best quality ( 10% ); 
o Analyze the current platform of patron and provide solution to fulfil the requirement. 
o Help identify new requirements such as functional, data, and quality requirements 
regarding user interfaces. 
6. Create/develop application front end as per design comps and information provided by customer 
(20%); 
7. Integrate front end application with the application business layer (10%); 
8. Conduct usability testing to resolve interface problems (10% ); 
o Develop and direct Content Management System application testing and validation 
procedures. 
o Testing the product in controlled, real situations before release the application. 
o Test software development methodology in an agile environment. 
o Fix the bugs found in real situations after integrated with various software applications. 
9. Coordinate with interface Design Architects for meeting accessibility standards at code level 
(5%); 
10. Design/Develop/Implement workflows in Content Management System by studying customers 
information needs, conferring with users, studying systems flow, data usage, and work processes; 
investigating problem areas (10%); and 
11. Helping customer transition to their new Ul Framework by providing knowledge of transfer and 
mentoring ( 5% ). 
at *10 (E.D. Mich. Sep. 16, 2019); Altimetrik Corp. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); Sagarwala 
v. Cissna, No. CV 18-2860 (RC), 2019 WL 3084309, at *9 (D.D.C. July 15, 2019). 
5 
First, much of these functions are vague or generalized. 10 Such generalized information does not 
establish a necessary correlation between the proffered position and a need for a particular level of 
education, or educational equivalency, in a body of highly specialized knowledge in a specific 
specialty. Specifically, the record lacks sufficient material detailing the project the end-client will 
assign to the Beneficiary. As a result, the record leaves us questioning how the general statements or 
duties listed above factor into the day-to-day functions the Beneficiary would perform. For instance, 
it is unclear what specific skills are required to work with business analysts to ensure successful 
product delivery, or the knowledge necessary to design, develop, deliver, and manage a proof of 
concept for the assigned project. These statements lack sufficient information about the Beneficiary's 
specific role and the complexity of the tasks. 11 It is not evident that the proposed duties as described 
in this record of proceeding, and the position that they comprise, warrant recognition of the proffered 
position as a specialty occupation. 
Second, although some duties are less vague, it is not self-evident that they are complex due to the use of 
industry jargon. 12 This makes it nearly impossible for the lay person to determine whether the duties 
sufficiently support the Petitioner's claims that the Beneficiary would perform in a specialty occupation. 
It is always the Petitioner's responsibility to explain what these jargon-laden functions involve, and how 
they demonstrate eligibility. 13 Additionally, the truth is to be determined not by the quantity of evidence 
alone but by its quality. 14 The Petitioner should substitute or explain industry lingo with explanations 
and concepts that allow a person without a great familiarity with the technical nature of these functions 
to be able to grasp what the position consists of: and why it is so complex or unique, or the duties so 
specialized that the H-lB requirements are satisfied.15 Although the Director indicated the end-client 
letter was general in nature, even now the Petitioner does not off er more detailed duties. 
As the final point on the end-client letter, we further determine that it does not sufficiently support the 
Petitioner's eligibility. While the petitioning organization submitted a letter from the end-client, absent 
from this material is any indication of how long the client would require the Beneficiary's services, or 
any reasoned explanation relating to that estimate. The Petitioner failed to submit probative evidence to 
verify its assertion relating to the duration the Beneficiary's services would be needed on the project. 
Moreover, none of the involved parties described an adequate basis for a 35-month estimate. Such claims 
are therefore equivalent to assertions rather than evidence to support the assertions, and when made 
without supporting documentation are of limited probative value and do not carry the weight to satisfy 
the Petitioner's burden of proof 16 Based on these shortcomings, we conclude the end-client letter is 
insufficient to corroborate the Petitioner's assertions. 
1° For example, reference items one through seven. 
11 Cf Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) (indicating USCIS must evaluate the actual 
tasks, demands, and duties to determine whether a petitioner has established the position realistically requires the 
specialized knowledge-both theoretical and applied-which is almost exclusively obtained at the baccalaureate level). 
A broad and generalized presentation of a position's responsibilities prevents USCTS from making such a determination. 
See also Sagarwala, No. CV 18-2860 (RC), 2019 WL 3084309, at *8. 
12 For example reference items nine through eleven. 
13 Section 291 of the Act, 8 U.S.C. § 1361. 
14 Matter of Chawathe, 25 l&N Dec. 369,376 (AAO 2010) (citing Matter of E-M-, 20 l&N Dec. 77, 80 (Comm'r 1989)). 
15 Sagarwala, No. CV 18-2860 (RC), 2019 WL 3084309, at *8-10. 
16 Matter ofSoffici, 22 l&N Dec. 158, 165 (Comm'r 1998). 
6 
In this matter, the record does not contain sufficient and probative documentation on this issue from 
(or endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, 
that identifies the essence and duration of the project, the substantive nature of the duties they will 
carry out, and any particular academic or work experience requirements for the proffered position. 
Therefore, based upon our review of the record, we conclude that the Petitioner has not established 
the substantive nature of the work the Beneficiary will perform. This precludes a conclusion 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 entry into 
the particular position, which is the focus of criterion one; (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 two; (3) the level of complexity or uniqueness of the proffered 
position, which is the focus of the second alternate prong of criterion two; ( 4) the factual justification 
for a petitioner normally requiring a degree or its equivalent, when that is an issue under criterion 
three; and ( 5) the degree of specialization and complexity of the specific duties, which is the focus of 
criterion four. 
Based on the foregoing, we cannot conclude that the proffered position qualifies as a specialty 
occupation, and we will dismiss the appeal. 
C. Additional Issues 
On appeal, the Petitioner contests the Director's determination that it did not submit sufficient 
evidence of the actual work the Beneficiary would perform and it points to the letter from the end-client 
as supporting evidence. However, as we have already outlined several shortcomings associated with 
that evidence, we disagree with the Petitioner's assertion relating to this material. 
Additionally, the Petitioner addresses issues within its appeal brief that are unrelated to the basis of 
the Director's adverse decision; namely associated with the employer-employee relationship with the 
Beneficiary. As these issues do not pertain to the Director's decision, we will not address them here. 
We further disagree with the Petitioner's statement that the Director indicated "there was no 
description of the beneficiary's job duties as provided by the end-client." Instead, the Director stated: 
"You indicated that the beneficiary will work at the location of [ the end-client]. You submitted a letter 
from [the end-client]. This letter generally describes the beneficiary's proposed duties." Therefore, 
we consider this to be the Director's acknowledgement of duties within the end-client letter, albeit that 
those functions were presented in a general manner and were insufficient to demonstrate eligibility. 
Further discord lies within the Petitioner's definitive statement that the Director stated "there is no 
valid contract showing the work the beneficiary would be involved it [sic]." While we agree that the 
Director did not provide analysis relating to the provision within the master contract allowing for work 
to occur outside of an SOW, we do not concede that the Director discussed the validity of any 
contractual material on record within her denial decision. Moreover, as we already addressed the 
insufficient nature of the contractual documentation, we will not discuss it further here. 
Next, the Petitioner states within the appeal brief that the master contract "stated the qualifications that 
are required to perform the job duties." First, the Petitioner did not specify what portion of the master 
7 
contract exhibited such information. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Commensurate with that burden is 
responsibility for explaining the significance of proffered evidence. 17 Filing parties should not submit 
lengthy and information-dense contractual material without notifying the appellate body of the specific 
element that corroborates their claims, as doing so places an undue burden on the appellate body to 
search through the documentation without the aid of the filing party's knowledge. 18 The truth is to be 
determined not by the quantity of evidence alone but by its quality. 19 
Second, a review of that document does not reveal any qualifications applicable to the distinct position 
within the petition, which is the only relevant analysis here. If the master contract broadly discussed 
the Petitioner's responsibilities to provide qualified personnel to work at the end-client worksite (see 
section 1.2), or other suitability considerations (see section 5.3), we do not consider this to be 
sufficiently specific to demonstrate the detailed work the Beneficiary would perform for the period 
the petitioning organization requested on the petition. 
Closing its appeal brief, the Petitioner discusses the requisite standard of proof. A petitioner's burden 
of proof comprises both the initial burden of production, as well as the ultimate burden of persuasion. 20 
First, a petitioner must satisfy the burden of production. As the term suggests, this burden requires a 
filing party to produce evidence in the form of documents, testimony, etc. Second, a petitioner must 
satisfy the burden of persuasion, meaning they must establish the degree to which their evidence 
should persuade or convince USCIS that the requisite eligibility parameters have been met (i.e., the 
obligation to persuade the trier of fact of the truth of a proposition). 21 The level at which petitioners 
must persuade in the present context is the preponderance of the evidence. Whether a petitioner is 
able to show that a particular fact or event is more likely than not to occur is the determinant of whether 
they have met the preponderance of the evidence standard of proof. 
With this standard in mind, a petitioner's prediction, without sufficient supporting evidence, that over 
nearly a three-year period it will have prospective work available for a particular beneficiary appears 
to be notional and falls short of satisfying the standard of proof. This applies to whether the prediction 
is based on an existing project that a petitioner expects to continue into the future, or on an unspecified 
project. Materially relevant statements made without supporting documentation are of limited 
probative value and are insufficient to satisfy a petitioner's burden of proof. 22 This is particularly 
important in a case such as this where the impetus and existence of the proffered position appears 
dependent entirely upon outside clients to provide it. If a petitioner is unable to establish that 
qualifying work actually exists, we cannot determine whether the proffered position is a specialty 
occupation. 23 
17 Repaka v. Beers, 993 F. Supp. 2d 1214, 1219 (S.D. Cal. 2014). 
18 Cf Flagstar Bank. FSB v. Walker, 451 S.W.3d 490,505, n.51 (Tex. App. Nov. 14, 2014) (citing to Aguilar v. Morales, 
162 S.W.3d 825. 838 (Tex. App. 2005)). 
19 Chawathe. 25 l&N Dec. at 376. 
20 Matter of Y-B-, 21 l&N Dec. 1136. 1142 n.3 (BIA 1998); also see the definition of burden of proof from Black's Law 
Dictionary (11th ed. 2019) (reflecting the burden of proof includes both the burden of persuasion and the burden of 
production). 
21 Dir., Office of Workers' Comp. Programs, Dep ·1 of Labor v. Greenwich Collieries, 512 U.S. 267, 274 (1994). 
22 Sofjici, 22 T&N Dec. at 165. 
23 We must review the actual duties the Beneficiary will be expected to perfonn to asce1iain whether those duties require 
8 
Within the pet1t10n, the Petitioner committed to assign the Beneficiary to specific work, at the 
end-client's location, for a particular timeframe. In the same manner that the Petitioner committed to 
compensate the Beneficiary at a particular wage in addition to multiple other factors it attested to, the 
organization must preponderantly demonstrate that all its essential commitments are more likely than 
not to occur. In other words, the Petitioner guaranteed USCIS that it would meet a set of parameters, 
and it is their duty to ensure their case gets to that preponderant apex. 
The Petitioner has not met its burden of persuasion demonstrating that it is more likely than not that 
the end-client would provide qualifying work for the Beneficiary for the requested timeframe. Without 
greater detail relating to the projects and the Beneficiary's role in the projects, the Petitioner has not 
demonstrated how his role in future assignments requires "attainment of a bachelor's or higher degree 
in the specific specialty." 24 This evidence is insufficient to establish that, at the time of filing, the 
Petitioner had secured the Beneficiary's assignment on any particular project, which is insufficient to 
demonstrate eligibility. 25 For the reasons discussed above, the Petitioner has not demonstrated that 
the petition was filed for non-speculative employment. If it is not preponderant that a position would 
exist as requested, then we cannot determine the substantive nature of its associated duties. 
Additionally, we question whether the U.S. Department of Labor's (DOL) ETA Form 9035 & 9035E, 
Labor Condition Application for Nonimmigrant Workers (LCA) corresponds to and supports the 
petition. As this issue was not part of the Director's decision, we simply note it here. Namely, we 
observe that the Petitioner classified the proffered position under the occupational title "Computer 
Systems Analysts," corresponding to the Standard Occupational Classification (SOC) code 15-1121. 
However, the offered position appears to be comprised of duties from another SOC code under the 
"Industrial Engineers" occupational subcategory of "Human Factors Engineers and Ergonomists," 
(17-2112.01). 26 The duties relating to creating, developing, and integrating front end applications­
comprising 30 percent of the offered position's duties-is closely associated with the user experience 
and user interface responsibilities of the Human Factors Engineers and Ergonomists occupational 
category. Consequently, it appears the Petitioner may have selected the incorrect SOC code designation 
at least a baccalaureate degree in a specific specialty, or its equivalent, as required for classification as a specialty 
occupation. To accomplish that task in this matter, we review the duties in conjunction with the specific project(s) to 
which the Beneficiary will be assigned. To allow otherwise, results in generic descriptions of duties that, while they may 
appear (in some instances) to comprise the duties of a specialty occupation, are not related to any actual services the 
Beneficiary is expected to provide. 
24 Section 214(i)(l)(B) of the Act. 
25 See 8 C.F.R. ~ 103.2(b)(l); Matter of Michelin Tire Corp., 17 T&N Dec. 248,249 (Reg'l Comm'r 1978) (finding that 
nonimmigrant eligibility criteria must be met at the time a petitioner files the petition). 
26 Compare the following O*NET definitions. Computer Systems Analysts: Analyze science, engineering, business, 
and other data processing problems to implement and improve computer systems. Analyze user requirements, procedures, 
and problems to automate or improve existing systems and review computer system capabilities, workflow, and scheduling 
limitations. May analyze or recommend commercially available software. Human Factors Engineers and Ergo no mists: 
Design objects, facilities, and environments to optimize human well-being and overall system performance, applying 
theory, principles, and data regarding the relationship between humans and respective technology. Investigate and analyze 
characteristics of human behavior and performance as it relates to the use of technology. For additional information, see 
https://www.onetonline.org/. 
9 
on the LCA. Had the Petitioner selected Human Factors Engineers and Ergonomists category, it would 
have resulted in a higher paying wage in accordance with guidance from DOL. 27 
Further, the Petitioner provided its own job advertisements relating to numerous positions, but it is unclear 
which job, or jobs, the Petitioner was presenting as exemplar samples. The lack of clarity emanates from 
the inclusion of duties similar to the position in the petition, but the Petitioner intermingled numerous 
position titles, with divergent position prerequisites. We note that almost every position in the job 
advertisements would require an elevated wage level higher than the level the Petitioner designated on 
the LCA. 
We provide two examples. First, multiple "technical consultant" positions mandated a bachelor's degree 
and five years of work experience. Such prerequisites would mandate an increase in the wage level to a 
Level N based on guidance from DOL. 28 We note the duties within that advertisement are essentially 
an abbreviated form of the proffered position's responsibilities. 29 Second, another advertisement required 
a master's degree and one year of work experience. Moreover, the Petitioner listed the occupation as a 
"Software Developers, Applications," which directly correlates with the Occupational Information 
Network entry under the SOC code 15-1132. That occupational category would mandate a higher paying 
wage than the one the Petitioner designated-Computer Systems Analysts-with similar requirements. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is a 
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. 
27 DOL, Emp't & Training Admin .. Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs 
(rev. Nov. 2009) (DOL guidance), available at http://flcdatacenter.com/download/NPWHC_Guidance_ 
Revised_ 11 _ 2009 .pdf 
28 See DOL guidance. 
29 We utilize the term "abbreviated" because the advertisement was in a newspaper classified section in which the number 
of characters the Petitioner could utilize were cost-limited. In other words, the Petitioner shortened words and phrases to 
use the fewest number of characters needed. 
10