dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 23353336 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 27, 2023 
The Petitioner seeks to extend the Beneficiary's temporary employment 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 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 Texas Service Center Director initially approved the Form 1-129, Petition for a Nonirnmigrant 
Worker (petition), then revoked the approval after issuing a notice of intent to revoke (NOIR). The 
Director revoked the approval on two bases : (1) the Petitioner did not establish the Beneficiary was 
working within the scope of the approved petition; and (2) the Petitioner did not provide an LCA that 
covered the Beneficiary's work location. The matter is now before us on appeal. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the 
Act; Matter of Cheung, 12 I&N Dec . 715, 720 (BIA 1968); Matter of Estime, 19 I&N Dec. 450,452, 
n.1 (BIA 1987). We review the questions in this matter de novo. Matter of Christo 's Inc., 26 l&N 
Dec . 537, 537 n.2 (AAO 2015). Upon de novo review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
A. Revocation Authority 
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 if he 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 or on the 
application for a temporary labor certification 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 101 (a)( 15)(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. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for 
the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 
30 days of receipt of the notice. The director shall consider all relevant 
evidence presented in deciding whether to revoke the petition in whole or in 
part .... 
B. Specialty Occupation 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(l) of the Act but adds a 
non-exhaustive list of fields of endeavor. 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and is a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
The services the Beneficiary will perform in the position determine: (1) the normal mm1mum 
educational requirement for entry into the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a common degree requirement, under the first alternate prong of criterion 2; (3) the level of complexity 
or uniqueness of the proffered position, which is the focus of the second alternate prong of criterion 
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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. See 8 C.F.R. § 214.2(h)(4)(iii)(A). 
II. BACKGROUND 
When it filed the petition, the Petitioner was located inl I Georgia and subsequently moved to 
another location. The petitioner stated that the beneficiary will be responsible for working on "the 
company's IT applications in a highly dynamic and fast-paced environment." It listed his duties as 
the following: 
• Development of Software Code for Internal Cloud Applications 
• Review of existing code and review of peer code 
• Refinement of team processes 
• Adhere to Agile Scrum Principles 
• Use of industry tools to develop, deploy, maintain, and test software developed 
• Work with developers to design and deliver high quality software for Cloud platform 
• Troubleshoot problem/bugs and develop appropriate fix/patch 
• Participate in design and code reviews 
• Create appropriate technical documentation related to development and support of new 
releases 
• Collaborate with other team members to provide input on how QA testing and Support of new 
releases can be accomplished and providing support when necessary 
• Integrate software with off the shelf solutions 
• Attend and actively participate in Agile Scrum meetings 
• Backlog grooming 
• Sprint Review 
• Sprint Planning 
• Daily Scrum 
Subsequent to the petition's approval, USCIS performed a site visit, and when the Petitioner's 
representative was inadequately cooperative, agency officers requested the representative and the 
Beneficiary appear at a local USCIS office for an in-person interview. During this process, the 
Petitioner's representative indicated the Beneficiary was working on multiple products. 
III. ANALYSIS 
During the in-person interview, the Beneficiary and the signatory on the petition described the foreign 
national's job duties. The Director determined that during this interview they were unable to provide 
sufficient evidence to support the projects the beneficiary was engaged in to support the job duties 
described in the petition, the Petitioner did not provide evidence of contracts or client agreements 
relating to the work the Beneficiary was then engaged in, and the Beneficiary was unable to articulate 
sufficient details to support the contention that he was serving as a software engineer for the project 
to which he was then assigned. These vagaries left the Director unable to make a favorable 
determination that the Beneficiary was working within the scope of the petition as a senior systems 
engmeer. 
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We note on appeal the Petitioner submits a contract the Director indicated was absent from the record 
in the form of a Master Services Agreement (MSA) between itself and another employer (Employer 
2). As to what work would result from the MSA, Section 6.4 defines a "work product" as "any 
programming, documentation, data compilations, reports, and any other media, materials, or other 
objects produced as a result of Sub-Contractor's [a.k.a. the Petitioner's] work or delivered by 
Sub-Contractor in the course of performing that work." Exhibit A attached to the MSA is the Scope 
of Work (SOW). That exhibit reflects that the Petitioner will provide services to a third party 
(Employer 3) and not to Employer 2. 
Although the SOW contains the Beneficiary's name, it lacks sufficient detail to establish that the work 
he would perform for Employer 3 adequately aligns with the duties the Petitioner stated he would 
perform when it filed the petition. The SOW only reflects the Petitioner "will provide software 
development and consulting services to [Employer 3] and/or its customers." Notably, this content 
appears to indicate that the Beneficiary might not perform work for Employer 3, and instead would be 
assigned to provide services to additional unnamed entities that are not parties to this contract. This 
scenario appears to be too "watered-down" for the Petitioner to preponderantly demonstrate the 
Beneficiary would perform the work it listed when it filed the petition as his actual day-to-day duties. 
It is unclear from the record what exact work the Beneficiary would perform. 
In the Petitioner's statement from the initial filing quoted above, they stated he would be working on 
the petitioning organization's own "IT applications." However, after the Petitioner has been afforded 
numerous opportunities-within the initial filing, during the site visit and the in-person interview, 
when they responded to the Director's NOIR, and now on appeal-to show it has its own software 
applications that it markets to organizations requiring such services, it has not shown that the 
Beneficiary is working on the petitioning organization's own information technology applications. As 
an example, an application programming interface that allows one software product or service to 
communicate with other similar products or services without the need for a significant amount of 
customization. This is an additional factor that supports the Director's decision to revoke the petition's 
approval. 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter ofY-B-, 21 I&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 production and the burden of persuasion). 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. that adheres the governing statutory, regulatory, and policy 
provisions sufficient to have the issue decided on the merits. 
Second, a petitioner must satisfy the burden of persuasion, meaning they must establish the degree to 
which their arguments and 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). 
Dir., Office of Workers' Comp. Programs, Dep'tofLaborv. Greenwich Collieries, 512 U.S. 267,274 
(1994). 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 
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not to occur is the determinant of whether they have met the preponderance of the evidence standard 
of proof The Petitioner has not met that standard here. 
Even if the Petitioner had overcome all the above adverse aspects, we would still remand the matter 
to the Director to allow the organization to address why it was compensating the Beneficiary with an 
annual salary of $65,000 when the LCA calls for at least $85,509 and on the petition the Petitioner 
stated it would pay him $90,000. This deficit in pay would also appear to preclude the reinstatement 
of this petition's approval. 
Because the identified basis for the petition's revocation of its approval is dis positive of this appeal, 
we will not address and we reserve the Petitioner's remaining appellate arguments. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another 
independent issue is dispositive of the appeal); see also Matter of D-L-S-, 28 I&N Dec. 568, 576-77 n.10 
(BIA 2022) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The revocation of the previously approved petition is affirmed for the above stated reasons, with each 
considered an independent and alternative basis for the decision. The burden of proof to establish 
eligibility for the benefit sought remains with a petitioner in revocation proceedings. Section 291 of 
the Act; Cheung, 12 I&N Dec. at 720; Estime, 19 I&N Dec. at 452, n.1. The Petitioner has not met 
that burden. 
ORDER: The appeal is dismissed. 
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