dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 12092112 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 7, 2021 
The Petitioner seeks to temporarily employ the Beneficiary as a "technical lead" under the H-lB 
nonimmigrant classification for specialty occupations . See Immigration and Nationality Act (the Act) 
section 101(a)(15)(H)(i)(b), 8 U.S .C. § 1101(a)(15)(H)(i)(b). 
The Vermont Service Center Director approved the petition, but later revoked the approval after 
serving a notice of her intent to revoke (NOIR) it. In the revocation notice, the Director concluded 
that the Petitioner had not established that specialty occupation work was available for the Beneficiary 
when the petition was filed, and that the position did not qualify as a specialty occupation . The 
petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
The Administrative Appeals Office (AAO) reviews the questions in this matter de nova. 2 Upon de 
nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S .C. § l 184(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; 
1 Section 291 of the Act; Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
(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 note as a threshold issue that 8 C.F.R. § 214.2(h)(4)(iii)(A) must 
logically be read together with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other 
words, this regulatory language must be construed in harmony with the thrust of the related provisions 
and with the statute as a whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281,291 (1988) (holding 
that construction oflanguage which takes into account the design of the statute as a whole is preferred); 
see also COIT Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F .R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to meet 
the statutory and regulatory definition of a specialty occupation. To otherwise interpret this section as 
stating the necessary and sufficient conditions for meeting the definition of specialty occupation would 
result in particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the 
statutory or regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To 
avoid this result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental 
criteria that must be met in accordance with, and not as alternatives to, the statutory and regulatory 
definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), we construe the term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to 
mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related 
to the proffered position. 3 
To determine whether a particular job qualifies as a specialty occupation, we do not rely simply upon 
a position's title or the broader occupational category within which a petitioner claims the position is 
located. The specific duties of the proffered position, combined with the nature of the petitioning 
entity's business operations, are factors to be considered. We must examine the ultimate employment 
of the individual, and determine whether the position qualifies as a specialty occupation. See generally 
Defensor, 201 F. 3d 384. The critical element is not the title of the position or an employer's 
self-imposed standards, but whether the position actually requires the theoretical and practical 
application of a body of highly specialized knowledge, and the attainment of a baccalaureate or higher 
degree in the specific specialty as the minimum for entry into the occupation, as required by the Act. 
3 See Royal Siam COip. v. Chertof(, 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"). 
2 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(l) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(l). 
II. ANALYSIS 
The Director's statements in the NOIR noting deficiencies in the record at the time of filing were 
sufficient to notify the Petitioner of her intention to revoke the approval of the petition in accordance 
with the provisions at 8 C.F.R. § 214.2(h)(l l)(iii). 4 After reviewing the Petitioner's response to the 
NOIR, the Director concluded in her revocation notice that the Petitioner did not establish that the 
Beneficiary would be employed in a specialty occupation according to the terms and conditions 
specified in the petition. Specifically, the Director cited to the ground for revocation at 8 C.F.R. 
§ 214.2(h)(l l)(iii)(2) and discussed her reasons for concluding, based upon a review of the record and 
new information that was unavailable at the time of the petition approval, that the statement of facts 
contained in the petition was not true and correct; but rather was inaccurate, fraudulent or 
misrepresented material facts. For the reasons that we will discuss, we agree. 5 
Considering the evidence presented in the petition, we conclude that the Petitioner has willfully 
misrepresented material facts specific to this petition. The Petitioner filed the H-lB petition on April 
3, 201 7, indicating in part 5. of the petition that it intended to employ the Beneficiary from October 
2017 through August 2020 atl I South Carolina [the SC location]. The 
Petitioner designated the proffered position on the labor condition application (LCA) as a Standard 
Occupation Classification (SOC) code 15-1132 "Software Developers, Applications" occupation with 
a Level I wage, and identified the Beneficiary's proposed work location in the LCA as the SC location. 
In signing the petition, the Petitioner attested "I have reviewed this petition and that all of the 
information contained in the petition, including all responses to specific questions, and in the 
supporting documents, is complete, true and correct." 
4 U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-lB petition pursuant to 8 C.F.R. 
§ 214.2(h)(l l)(iii), which states the following: 
(A) Grounds for revocation. The director shall send to the petitioner a notice of intent to revoke 
the petition in relevant part ifhe or she finds that: 
(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the 
petition; or 
(2) The statement of facts contained in the petition ... was not true and correct, inaccurate, 
fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
( 4) The petitioner violated requirements of section IO I ( a)( l S)(H) of the Act or paragraph 
(h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or involved gross 
error. 
5 The Petitioner submitted documentation to support the 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 
The Petitioner indicated that the Beneficiary would perform technical services to its client, B-, at the 
SC location, and described the duties that he would perform for B-. The Petitioner provided a 
statement of work [SOW] as evidence of its contractual arrangement with B- for the Beneficiary's 
proposed employment. 6 The SOW, effective from January 2017 through December 2017, called for 
the Petitioner to provide 92 workers to assist B- in its software development work; with 85 engineers 
to be deployed "off-shore" and 7 engineers to be employed "on-site." After reviewing the evidence 
initially provided, the Director approved the petition in September 2017. That same month - after the 
petition was approved, the Department of State (DOS) contacted B-'s representative who confirmed 
that B- had a contract with the Petitioner to perform computer services, but clarified that B- was not 
expecting to use the Beneficiary's services. In June 2019, the Beneficiary appeared for a consular visa 
interview but he was not issued an H-1 B visa. Instead, DOS returned the petition to USCIS for 
possible revocation. 
The Director issued a NOIR in January 2020, in which she discussed the new information gained from 
B's representative that we described above, and made a preliminary conclusion that the Petitioner 
willfully misrepresented the terms and conditions of the Beneficiary's proposed work assignment with 
B- as presented in the petition at the time of filing, ( and upon which the Director had relied upon to 
approve the petition). The Director provided the Petitioner with an opportunity to rebut the new 
information presented in the NOIR in accordance with 8 C.F.R. § 214.2(h)(l l)(iii)(B). In response to 
the Director's NOIR, the Petitioner indicated: 
The initial filing was for a project which was expected to be initiated in October 2017. 
Due to unavoidable projects already being in the pipeline, the project initiation went 
till further notice after discussion with the [B-] engineering team. The Beneficiary's 
services were requested in 2019 for the project, justified by an official letter from [B-] 
.... No terms and conditions as per the filed H-1 B for the [Beneficiary] has changed. 
The work location, end client, job title and duties remain the same per the filed H-lB. 
The Petitioner also provided B-' s May 2019 letter which indicates that the Beneficiary will 
prospectively be providing consulting services to B- at the SC location for "l + years with possible 
extensions." The Petitioner provided several SOW s for the placement of its personnel "on-shore" with 
B- for periods of service commencing on or after September 2019. 
After reviewing the Petitioner's response to the NOIR, the Director revoked the petition in accordance 
with 8 C.F .R. § 2 l 4.2(h)(l l )(iii)(2), concluding that the evidence provided by the Petitioner in rebuttal 
to the issues raised in her NOIR did not substantiate that it had specialty occupation work to offer the 
Beneficiary when the petition was filed. 7 Instead, the evidence provided in the NOIR response offered 
an employment opportunity for the Beneficiary that would not commence until two or three years after 
6 Although a petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner 
and third parties to establish an employer-employee relationship, "the petitioner must demonstrate eligibility for the benefit 
sought" and "if a petitioner provides contracts or legal agreements, [an] officer is not precluded from evaluating that 
evidence in the adjudication of other eligibility criteria." USCIS Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda at 3 (June 17, 2020), http://www.uscis.gov/legal-resources/policy-memoranda. 
7 A petitioner must establish eligibility at the time of filing a nonimmigrant visa petition. See 8 C.F.R. § 103.2(b)(l). 
4 
the filing of the petition. 8 The Director concluded in her revocation notice that USCIS approved the 
petition, in part, based on the Petitioner's statements and evidence in the petition regarding the 
Beneficiary's assignment with B-, which asserted that the employment was to start in October 2017, 
which was not true and correct. 
The Petitioner acknowledges in its NOIR response and on appeal that the Director relied on the initial 
evidence in the petition in order to approve it. It further asserts that the project to which the Beneficiary 
was to be assigned was scheduled to start in October 201 7, but fell through, and was rescheduled "till 
further notice after discussion with the B- engineering team." While B-'s letter indicates that it would 
prospectively utilize the Beneficiary's services starting in September 2019, the letter does corroborate 
the Petitioner's assertions with regard to the postponement of the project that encompassed the 
Beneficiary's October 2017 work assignment in the petition. 
Moreover, a careful review of the record at the time of the Director's approval of the petition does not 
suggest that the Beneficiary was to be assigned to a new project at B-'s work location. The Petitioner 
did not indicate that the Beneficiary was to work on a new project in the petition, but instead provided 
a SOW for the deployment of on-site personnel commencing in January 2017, ten months before the 
requested employment start date in the petition. Here, the Petitioner has not substantiated its 
assertions that it had H-1 B caliber work to offer the Beneficiary for the requested period of 
employment in the petition. The foregoing raises unanswered questions regarding the petition's overall 
reliability in establishing the nature of the proffered position and in what capacity the Beneficiary would 
be employed. The Petitioner must resolve these inconsistencies with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
We note that the misrepresentation of a material fact may lead to multiple consequences in 
immigration proceedings. First, as an evidentiary matter, the misrepresentation may impact the review 
and adjudication of the visa petition or immigration application. Ifwe do not believe that a fact stated 
in the petition is true, we may reject that assertion. See section 214(c)(l) of the Act, 8 U.S.C. § 
1184(c)(l); cf Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Anetekhai v. INS, 876 
F.2d 1218, 1220 (5th Cir. 1989). The Petitioner's submission of false statements may also call into 
question the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. See Matter of Ho, 19 I&N Dec. at 591-92. Next, a material misrepresentation that is 
determined to have been willful under section 212(a)(6)(C) of the Act may make an individual 
ineligible to receive a visa and ineligible to be admitted to the United States. See, e.g., Forbes v. INS, 
48 F.3d 439, 442 (9th Cir. 1995). Finally, a finding of willful, material misrepresentation may lead to 
criminal penalties. See 18 U.S.C. §§ 1001, 1546; see also United States v. O'Connor, 158 F. Supp.2d 
697 (E.D. Va. 2001). 
In summary, the Petitioner has not sufficiently addressed the material inconsistencies in the record. 
Therefore, we conclude that the Petitioner has not established that specialty-occupation employment 
was available to the Beneficiary when it filed the petition. As discussed, a petitioner must establish 
eligibility at the time of filing a nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition 
8 A Form T-129 H-1 B petition may not be filed more than 6 months prior to the date employment is scheduled to begin. 
See page 27 of the Form 1-129 instructions, https://connect.uscis.dhs.gov/org/MGMT/IDP/Catalog/Public%20Use%20 
Forms%20Library/1-129%20(Rev.%2001-17-l 7)%20Y%20Instructions.pdf. See also 8 C.F.R. § 214.2(h)(2)(i). 
5 
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'l Comm'r 1978). 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. The Petitioner has not done so here. 
Accordingly, we affirm the Director's revocation of the petition in accordance with 8 C.F.R. 
§ 214.2(h)(l 1 )(iii)(2). 
III. LABOR CONDITION APPLICATION 
Since the identified basis for revocation is dispositive of the Petitioner's appeal, we need not address 
another ground of ineligibility we observe in the record of proceedings. Nevertheless, we will briefly 
note and summarize it here. The Petitioner asserts in the NOIR response and on appeal that it intends 
to employ the Beneficiary "under the same terms and conditions of the [petition] filed with USCIS 
[in] 2017." However, the Petitioner has provided inconsistent statements regarding the minimum 
requirements for the proffered position. In the initial petition it indicated the duties of the proffered 
position require at least a bachelor's degree, or equivalent, in computer science, CIS, MIS, engineering 
(any), or related field. Later, in response to the Director's NOIR, it submitted a letter from B- which 
states "the minimum requirement[] to perform [the proffered position's] job duties is a Master's 
degree." Considered together, the material in the record specifies different types of degrees ( either a 
bachelor's in computer science, CIS, MIS, engineering (any) or an unspecified master's degree). The 
Petitioner did not provide an explanation for the variances in the minimum degree requirements. 
Matter of Ho, 19 I&N Dec. at 591-92. 
If the proffered position requires a master's degree for the proffered position per B-' s requirements, 
then the wage level would increase by one level, and the labor condition application (LCA) in the 
record would not correspond to the petition. The Petitioner designated the proffered position as a 
Level I position on the LCA. 9 The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure 
that an LCA actually supports the H-lB petition filed on behalf of the Beneficiary. For these 
additional reasons, we will not disturb the Director's revocation of the petition. 
IV. 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 here, 
and the petition will remain revoked. 
ORDER: The appeal is dismissed. 
9 See U.S. Dep't of Labor. Emp't & Training Admin .. Prevailing Wage Determination Policy Guidance. Nonagric. Immigration 
Programs (rev. Nov. 2009); http://www.foreignlaborce1i.doleta.gov/pdtYNPWHC_Guidance_Revised_l l_2009.pdf A 
wage determination starts with an entry level wage and progresses to a higher wage level after considering the experience, 
education, and skill requirements of the Petitioner's job opportunity. Id. 
6