dismissed H-1B Case: Software Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re : 6758971 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S . employer to 
temporarily employ a qualified foreign worker in a position that requires both: (a) the theoretical and 
practical application of a body of highly specialized knowledge; and (b) the attainment of a bachelor ' s 
or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite for entry into 
the position. 
The California Service Center Director denied the petition , concluding that the Petitioner had not 
established (1) that the proffered position is a specialty occupation, and (2) that the Beneficiary is 
qualified for the proffered position. On appeal, the Petitioner asserts that the Director erred in the 
decision . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369 , 375 (AAO 2010) . We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). 
Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY OCCUPATION 
A. Legal Framework 
Section 2 l 4(i)(l) of the Act, 8 U.S .C. § l l 84(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: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 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 v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
The Petitioner is a software consulting company with offices located in the United States, India and 
Hong Kong, engaged in the provision of "business and technology consulting services for the banking, 
retail and live sciences industries." The Petitioner is offering the Beneficiary a position as a 
"programmer analyst" and initially described the duties of the position, as follows: 
• Providing software development, analysis, application design, and support in a 
multi-cross computer software platform environment; 
• Designing, developing, testing, and implementing computer software solutions; 
• Troubleshooting technical and software design issues in legacy RPG 
applications, Middleware integrations with legacy on-premise and cloud 
solutions; 
• Preparing software program specifications, integration designs, and application 
designs; 
• Performing thorough analysis for computer requirements, designs, and program 
specifications; 
• Coding software programs utilizing structured and modular techniques; 
• Building integrations in iPaas platforms using best practices for data integrity 
and scalability architecture; 
• Building modernization solutions for legacy AS400/RPG applications; 
2 
• Converting legacy programs to modem DOT NET and Java application 
computer platforms; and 
• Providing design and development support for application integration using 
technologies like Dell Boomi and iPaas platform. 
The Petitioner provided a similar but alternate listing of job duties, as well as the relative percentage 
of time that the Beneficiary will devote to four overarching job functions in response to the Director's 
request for evidence (RFE), as follows: 1 
• Application Programming - Designing, developing, testing and implementing 
application programming using IBM I Series (AS400/RPG) technologies; 
• Analyzing, designing, developing, and maintaining iSeries applications [ using 
various software languages and tools]; 
• Coding new RPG programs and modifying or enhancing existing RPG 
programs; 
• Utilizing [ various software languages and tools] to develop software 
applications using full software Development life cycle (SDLC); 
• Supporting QA/UAT and regression testing; 
• Performing maintenance on existing programs and making enhancements to 
applications based on user requirements; 
• Building application integration programs using middleware platform - Dell 
Boomi; 
• Designing, developing, deploying and maintaining integration processes 
between applications across cloud and/or on premise using Dell Boomi 
AtomSphere platform (Cloud Integration, application integration and enterprise 
web serviced AP Is); 
• Managing, monitoring, troubleshooting and supporting existing integrations; 
• Strong understanding of various protocols/methods of communication, 
including [ various software languages and tools]. 
Percentage work allocation: 
• Requirements Gathering and design application (20%) 
• Programming and development ( 40%) 
• Testing and Implementation (20%) 
• Technical Support (20%) 
1 We acknowledge that the Petitioner submitted additional information for the job duties, which, for the sake of brevity, 
have not been included herein. However, this material has been closely reviewed and considered, as with all evidence in 
the record. For instance, the Petitioner also included a listing of the Beneficiary's previous academic coursework for the 
purpose of correlating the need for the Beneficiary's education with the associated job duties of the position. However, 
we are required to follow long-standing legal standards and determine first, whether the proffered position qualifies for 
classification as a specialty occupation, and second, whether the Beneficiary was qualified for the position at the time the 
nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ('The 
facts of a beneficiary's background only come at issue after it is found that the position in which the petitioner intends to 
employ him falls within [a specialty occupation]."). 
3 
C. Analysis 
For the reasons set out below, we determine that the proffered position does not qualify as a specialty 
occupation. Specifically, the record provides inconsistent and insufficient information regarding the 
proffered position, which in tum precludes us from understanding the position's substantive nature 
and determining whether the proffered position qualifies as a specialty occupation. 2 
A crucial aspect of this matter is whether the Petitioner has sufficiently described the duties of the 
proffered position such that we may discern the nature of the position and whether the position actually 
requires the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a baccalaureate degree in a specific discipline. When determining whether a position 
is a specialty occupation, we look at the nature of the business offering the employment and the 
description of the specific duties of the position as it relates to the performance of those duties within 
the context of that particular employer's business operations. 
The Petitioner maintains a United States headquarters office in California, and a satellite office in 
Florida where the Beneficiary is to work on in-house projects through contractual arrangements with 
the Petitioner's end-clients. The Petitioner designated the proffered position under the occupational 
category "Software Developers, Applications" corresponding to the Standard Occupational 
Classification (SOC) code 15-1132, at a Level II wage on the labor condition application (LCA)3 
submitted in support of the H-1 B petition solely for work at the Florida office location. 4 
On a fundamental level, the Petitioner has not provided sufficient material about the specific in-house 
projects that the Beneficiary will be assigned to during the course of his proposed H-lB employment. 
Again, the Petitioner provides business and technology consulting services for the banking, retail and 
live sciences industries. The Petitioner provides copies of its promotional material that outlines the 
services that it provides, and notes "[the Petitioner] is supporting various projects on new technology 
innovations, product building and business optimization." 
Within these business confines the Petitioner seeks to employ the Beneficiary as a "programmer 
analyst," and initially submitted statements of work [SOW s] from its end-clients as evidence of the 
in-house contractual work that the Beneficiary will perform. However, many of these SOWS do not 
appear to be relevant to the Beneficiary's in-house assignment in Florida. For instance, it submitted 
several SOWs for the performance of work by the Petitioner's "Offshore Team," not its employees 
working in Florida. Similarly, it also provided a November 2017 SOW for the Petitioner's 
"Remote/Offshore" staff which called for the provision of less than 200 hours of "onshore 
2 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
3 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-1 B worker the higher 
of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 2 l 2(n)(l) of the Act; 20 C.F.R. 
§ 655.73l(a). 
4 The Petitioner submitted a lease for commercial office space in Florida for the 2018 calendar year. The leased space is 
to house one to three employees at an office park that specializes in "virtual offices and business addresses for rent" on a 
"total average per-person per month" occupancy rate. See https://www.regus.ru/en-ru/virtual-office/united-
states/florida[ I 
4 
coordination" of "solution architect support." The third-party contractual arrangement between the 
Petitioner and the mid-vendor, D-B- called for the Petitioner to provide managed services for one year 
to D-B-'s end-client, F-N-, at F-N-'s location in Pennsylvania commencing in November 2016. This 
agreement does not appear to be relevant to the Beneficiary's specific employment as the work was 
to be performed either off-shore or at the end-client location in Pennsylvania. Further this contract 
lapsed prior to the requested H-lB employment start date in the petition. 
The Petitioner provided another D-B- SOW which specified that the Petitioner would provide "four 
( 4) Integration Developer/Consultant" in the Florida location for to perform "technical implementation 
services" over a period of one year commencing on or around February 2018 for a total of 8,000 hours. 
Notably, D-B-'s SOW did not delineate a requirement of a degree in a specific specialty for the 
consultants assigned to this project, but instead simply noted skillset requirements of "Dell boomi 
certified integration developer, Architecture and business domain expertise." Additionally, the 
Petitioner did not indicate that the Beneficiary would be assigned to this contract as an "integration 
developer," or otherwise discuss the nature and magnitude of this information technology project. 
The Director noted in her request for evidence (RFE) that the Petitioner's initial submission did not 
contain probative evidence of the Petitioner's in-house projects sufficient to show that the Beneficiary 
will be engaged in services in a specialty occupation at the office location. She requested copies of 
relevant contracts, SOWS, and work orders, and similar documentation to establish the existence of 
in-house specialty occupation-caliber work at the Florida location. In response, the Petitioner 
submitted a partial January 2019 A-O- end-client SOW which contained "Section 1. Services and 
Deliverables to be Provided," and "Section 5" that included sub-sections covering the fees to be 
charged to the end-client under the SOW, and the estimated resources to be provided under the SOW 
- which encompassed two offshore positions, and one "on-site - technical lead" position. The 
document did not identify the work location for the on-site technical lead position. The SOW also 
indicated that all of the positions require skills in "AS/400," but did not identify any other position 
requirements. We conclude the Petitioner's submission of select sections of the end-client SOW 
diminishes its evidentiary value, as it deprives us of the remaining portions that may reveal information 
either advantageous or detrimental to the petitioning organization's claims, and therefore, is of little 
probative value. It is the Petitioner's burden to prove by a preponderance of evidence that it is qualified 
for the benefit sought. Matter of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, eligibility 
is to be determined not by the quantity of evidence alone but by its quality. Id. 
We acknowledge that the Petitioner included other SOWs in its RFE response for off-shore and on­
shore work assignments, but not the overarching service agreements that form the basis for the 
contractual agreements between the parties. This material also does not identify where the on-shore 
assignments will be located and seeks to fill positions identified as "Lead Developer and Technical 
Architect." Though requested by the Director in her RFE, the lack of complete contractual 
documentation specific to the Beneficiary's employment is important because, in this case, the existence 
of the proffered position appears dependent upon the willingness of the end-client to provide it. 5 
5 "Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the 
[petition]." 8 C.F.R. § 103.2(b)(l4). 
5 
While the Petitioner intends to solely employ the Beneficiary on in-house projects, it has not 
documented or described any proprietary information technology projects that it is developing in­
house which would require the Beneficiary's services. Rather, it has submitted documentation that 
suggests that the Beneficiary will be solely engaged in the provision of software and systems 
development services for projects under production at end-client locations. Absent fully executed 
contracts and accompanying statements of work (or similar documentation) between and amongst the 
Petitioner, end-client, and the mid-vendor, if any, the record lacks evidence of any legal obligation on 
the part of the end-client to provide the position described by the Petitioner in this petition. 6 Here, the 
Petitioner did not document the contractual terms and conditions of the Beneficiary's employment as 
imposed by the end-client. See Defensor, 201 F.3d at 387-88 (where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical). 
Though relevant, the letter from the end-client, E-L-F-, is not sufficient to fill this gap, as it does not 
sufficiently describe the contractual relationship between the parties such that we can ascertain the 
nature and terms of that relationship and determine whether there is, in fact, a legal obligation on the 
part of the end-client to provide the position the Petitioner describes. For instance, the end-client's 
letters do not detail its legal obligation to offer employment to the Beneficiary beyond noting: 
[The Petitioner] has been engaged in providing IT services to [the end-client] since 
2017. [The Petitioner is currently supporting various projects related to eCommerce 
integration using [ various information technology software development platforms and 
tools] and testing services. [The Petitioner's] team supporting [the end-client] is based 
in Florida and India. 
In summary, if we cannot determine whether the proffered position as described will actually exist, 
then we cannot ascertain its substantive nature so as to determine whether it is a specialty occupation. 7 
Even if we were to set this foundational deficiency aside, we would still be unable to ascertain the 
substantive nature of the proffered position. 
We must review the actual duties the Beneficiary will be expected to perform to ascertain whether 
those duties require 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. 
As previously discussed, the record contains insufficient supporting documentation that identifies the 
existence, scope, duration, and magnitude of the end-client projects that require the Beneficiary's in­
house services, to establish the substantive nature of the Beneficiary's role therein. 8 Here, the 
6 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
7 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
8 Defensor, 201 F.3d at 387-88. 
6 
generally-stated duties provided by the Petitioner without the context of a specific in-house project work 
and the Beneficiary's actual role in the projects adds little to our understanding of the Beneficiary's duties. 
For instance, the Petitioner indicates that the Beneficiary will be engaged in "[p]erforming thorough 
analysis for computer requirements, designs, and program specifications," "[ c ]oding software 
programs utilizing structured and modular techniques," "[ c ]onverting legacy programs to modem 
DOT NET and Java application computer platforms," and "[b ]uilding modernization solutions for 
legacy AS400/RPG applications." However, though requested by the Director in her RFE, the 
Petitioner did not provide sufficient evidence of how the Beneficiary's specific job duties relate to the 
end-client's products and services. 9 
Additionally, though the Petitioner provided a percentage breakdown of the duties devoted to each 
overarching job functions, indicating for instance that the Beneficiary would spend 40% of his time 
involved in "programming and developing" tasks, the Petitioner did not adequately explain how the 
separately discussed system development duties of the position align with the Petitioner's generic job 
function groupings. 1° Collectively considering the Petitioner's various job duty descriptions, we are 
not able to determine from the record the duties which will encompass the predominant job functions 
of the proffered position, and which duties, will be incidental to the Beneficiary's employment. 
Therefore, the duties as described by the Petitioner, outside of the context of the in-house information 
technology projects which require the Beneficiary's services, do not communicate ( 1) the actual work 
that the Beneficiary would perform, (2) the complexity, uniqueness, or specialization of the tasks, and 
(3) the correlation between that work and a need for a particular level education of highly specialized 
knowledge in a specific specialty. 
The Petitioner has also presented inconsistent and insufficient evidence regarding the proffered 
"programmer analyst" position in the petition. While the Petitioner indicated in the petition and on 
the LCA that the Beneficiary would be employed as a programmer analyst position, the record contains 
other evidence which suggests that the Petitioner intends to employ the Beneficiary in a technical lead 
position. For example, the letter from one of its end-client's E-, who indicates: 
[the Petitioner] has been supporting [the end-client] since 2017 in the primary role as 
Technical Lead for integration development and will continue to support us in the 
integration initiatives. [The Beneficiary's] current responsibilities include design and 
programming/develop Boomi integration processes, testing and troubleshooting 
interface issues with the eCommerce, Order Management System, and warehouse 
systems. 
The Petitioner also submitted its own letter in response to the Director's RFE detailing the 
Beneficiary's employment as a technical lead in its offices located in India for E-L-F- and other end­
clients from July 201 7 to the present time. The Petitioner also indicates that the Beneficiary will be 
continuing to provide such services for E-L-F- and other end-clients. It submitted copies of its own 
job vacancy announcements for positions which it states are "for similar position[ s] with the 
Petitioner," which bear job titles, such as (1) "Programmer Analyst with AS400 and Java," (2) 
"Technical Lead/AS400/RPG Programmer Analyst (wholesale experience)," and (3) "Senior EDI 
9 See 8 C.F.R. § 103.2(b)(l4). 
10 Id. 
7 
Integration Developer." However, the advertised positions appear facially to involve substantially 
disparate roles and responsibilities from each other and the proffered position, measured in terms of 
the level of required skillsets and work experience for each position. 
The Petitioner has maintained throughout the proceeding that the proffered position requires as a 
minimum, a bachelor's degree in engineering or related field, and did not articulate that any work 
experience was required for entry into the position. In contrast, the advertised position all require 
substantial levels of work experience in addition to a degree in engineering, as follows: 
1. Programmer Analyst with AS400 and Java: Requires 5+ years of professional 
experience in Java foll stack development with AS400/RPG skills. 
2. Technical Lead/AS400/RPG Programmer Analyst (wholesale experience): 
Requires 5+ years ofIT experience and knowledge in AS400/RPG legacy systems, 
and 2+ years of AS400 lead level experience. 
3. Senior EDI Integration Developer: Requires 8+ years of strong EDI experience 
delivering B2B integrations, Order to Cash transactions, Xl2 documents, and 5+ 
years of strong integration experience and good knowledge in design patterns, 
architectures and integration technologies. Knowledge in using SOA, 
Microservices, Webservices/ API development and EDI (B2B and B2C). 
The Petitioner does not farther explain or reconcile how these posted positions are similar to the 
proffered position, other than to note that they each require a minimum of a bachelor's degree in 
engineering. Here, the Petitioner has not consistently articulated the nature of the position, e.g. 
whether it is one with technical project lead responsibilities as suggested by its "similar" posted 
positions, or one with lesser position responsibilities. While it stipulates that it requires a degree in 
engineering without any work experience for the proffered position, it contemporaneously submits 
copies of its job vacancy announcements asserting that they are "for similar position[s] with the 
Petitioner" that require differing, substantial levels of work experience to perform the duties therein. 
The Petitioner must resolve these inconsistencies and ambiguities in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
The Petitioner also submitted opinion letters from Professors W and C, who each present position 
requirements; for Professor W - computer science, or a related field; for Professor C - a bachelor's 
degree in computer science or a related technical field such as computer engineering. However, the 
Petitioner does not sufficiently explain why the position requirements in these opinion letters differ from 
the position requirements that it put forth, nor does it explain the reasons for its own variances in position 
requirements within the record. Professors W and C also do not address the variances between the 
minimum requirements for the position as stipulated by the Petitioner in its own job vacancy 
announcements relative to their own contemporaneous conclusions regarding the position 
requirements. They do not identify, analyze or reconcile the inconsistent evidence regarding the 
substantive nature of the "programmer analyst" position in the petition. Id. 
Further, each professor analyzes the duties of the proffered position as initially presented the record. 
They also provide the general descriptions of the services provided by the Petitioner presented in the 
position. While they discuss the Petitioner's consulting work in generic terms, the professors do not 
8 
identify or discuss the specific in-house project work that the Beneficiary will be engaged in. 
Therefore, we conclude that the professors' analyses of the Petitioner's initial generic job description 
outside of the context of a specific in-house project work that he will perform and the Beneficiary's actual 
role therein does not illuminate our understanding of the Beneficiary's duties sufficient to conclude that 
these duties comprise the duties of a specialty occupation. We may, in our discretion, use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int'!, Inc., 19 I&N Dec. 791, 795 
(Comm'r 1988). However, 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. Id. Accordingly, 
we find the record does not demonstrate that the professors are, as claimed, experts on the current 
requirements for the proffered position, or that they possessed the requisite information sufficient to 
adequately assess the nature of the position. Therefore, we therefore find the cited position description 
and accompanying analysis in their letters to be of little probative value. 
Moreover, the inconsistencies in the Petitioner's job vacancy announcements relative to its other 
statements in the record also raise significant questions as to whether the LCA corresponds to and 
supports the H-lB petition, as required, which farther impacts our understanding of the substantive 
nature of the position. Again, the Petitioner designated the proffered position under the occupational 
category "Software Developers, Applications" corresponding to the Standard Occupational 
Classification (SOC) code 15-1132, at a Level II wage on the LCA. The purpose of the LCA wage 
requirement is "to protect U.S. workers' wages and eliminate any economic incentive or advantage in 
hiring temporary foreign workers." 11 It also serves to protect H-lB workers from wage abuses. A 
petitioner submits the LCA to the DOL to demonstrate that it will pay an H-lB worker the higher of 
either the prevailing wage for the occupational classification in the area of employment or the actual 
wage paid by the employer to other employees with similar duties, experience, and qualifications. 
Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). While DOL certifies the LCA, U.S. Citizenship 
and Immigration Services (USCIS) determines whether the LCA's content corresponds with the H-lB 
petition. See 20 C.F.R. § 655.705(b) ("DHS determines whether the petition is supported by an LCA 
which corresponds with the petition, .... "). 
DOL guidance provides a five-step process for determining the proper wage level for the proffered 
position. 12 Step two of this process compares the experience described in the O*NET Job Zone to the 
requirements for the proffered position. Software Developers, Applications are classified in Job Zone 
4 with a Specialized Vocational Preparation (SVP) rating of "7.0 < 8.0." This SVP rating means that 
the occupation requires "over 2 years up to and including 4 years" of specific vocational training. A 
bachelor's degree expends two years, permitting the Petitioner to require up to and including two years 
of experience as the position's prerequisite before it must increase the wage level. If an employer 
requires a bachelor's degree and more than two years of work experience, a wage level increase is 
required as follows: 
11 See Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1 B Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United 
States, 65 Fed. Reg. 80,110, 80,110-11 (proposed Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 655-56). 
12 See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. 
Immigration Programs (rev. Nov. 2009); http://flcdatacenter.com/download/NPWHCGuidance _Revised_ 11 _ 2009.pdf. 
9 
Amount of Experience Experience and SVP Range Wage Level 
Requirement 
Up to and including two years Less than the experience and SVP No increase 
More than two years and up to Low end of the experience and SVP One level increase three years 
More than three years and up to High end of the experience and SVP Two level increase four years 
More than four years Greater than the experience and SVP Three level increase 
The Petitioner's job vacancy announcements each require a bachelor's degree and levels of experience 
which are greater than the SVP range. This would appear to necessitate raising the wage level by two 
increments to a Level IV wage rate. 13 The Petitioner indicated it would pay the Beneficiary $72,000, 
a level of compensation slightly more than commensurate with $71,365, the prevailing Level II wage 
certified in the LCA. However, it appears as though the Petitioner should have designated a Level IV 
wage rate to compensate him with at least $107,952, resulting in a significant pay discrepancy when 
compared to other employees with similar duties, experience, and qualifications. 14 Therefore, the 
Petitioner does not appear to have complied with that statutory intent when it failed to compensate the 
worker with the higher of either the prevailing wage for the occupational classification in the area of 
employment or the actual wage paid by the employer to other employees with similar duties, 
experience, and qualifications. 15 
In summary, we conclude that these inconsistencies farther erode the Petitioner's ability to 
demonstrate the substantive nature of the proffered position. Unresolved material inconsistencies may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. 16 As the record contains numerous and material inconsistencies 
relative to the Petitioner's minimum requirements for entry into the proffered position, the 
documentation submitted in this regard to establish eligibility for the classification sought lacks 
probative value and overall credibility. 17 
Upon review of the totality of the record, we determine it is insufficient to establish the substantive 
nature of the in-house work to be performed by the Beneficiary, which therefore 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 1; (2) industry 
positions which are parallel to the proffered position and thus appropriate for review for a common 
13 Id. 
14 For additional information, see the Foreign Labor Certification Data Center, Online Wage Library - FLC Wage Search 
Wizard available at http://www.flcdatacenter.com/OESWizardStait.aspx. 
15 Section 212(n)(l) of the Act; 20 C.F.R. § 655.73l(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 (4th Cir. 
2005); Patel v. Boghra, 369 F. App'x 722, 723 (7th Cir. 2010); Michal Vojtisek-Lom &Adm 'r Wage & Hour Div. v. Clean 
Air Tech. Int'!, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009). 
16 Matter of Ho, Dec. at591-92. 
17 Matter of Chawathe, 25 T&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
1989)). 
10 
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. 18 
The Petitioner has not presented evidence or argument sufficient to establish that, more likely than 
not, the proffered position is a specialty occupation as defined by the regulations and the statute. 
II. BENEFICIARY'S QUALIFICATIONS 
The Director also found that the Beneficiary would not be qualified to perform the duties of the 
proffered position. However, we are required to follow long-standing legal standards and determine 
first, whether the proffered position qualifies for classification as a specialty occupation, and second, 
whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition was 
filed. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ('The facts of a 
beneficiary's background only come at issue after it is found that the position in which the petitioner 
intends to employ him falls within [a specialty occupation]."). As discussed in this decision, the 
Petitioner has not established that the proffered position is a specialty occupation. Therefore, we need 
not and will not address the Beneficiary's qualifications farther. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
18 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal 
regarding the criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). 
11