dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 05, 2023 In Re: 29064683 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB 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 nonimmigrant 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 denied the petition, concluding they could not determine 
that the labor condition application (LCA) the Petitioner submitted corresponded to the petition 
because the record contained several misstatements and inconsistent representations of facts by the 
Petitioner. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 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. THE PROCEEDINGS BELOW 
The Petitioner is offering the Beneficiary the position of software developer. The petition included a 
Department of Labor (DOL) LCA certified for a position located within the "Software Developer, 
Applications" occupational category corresponding to the Petitioner's self-categorization within the 
Standard Occupational Classification (SOC) Occupational Information Network (O*NET) code 15-
1132.00. 1 The Petitioner attested they are not an H-IB dependent employer in the LCA. According 
to the Petitioner, the proffered job requires a minimum of a bachelor's degree in computer science or 
a closely related field. 
1 After the filing of the petition, the Department of Labor's Bureau of Labor Statistics advised that the "Software 
Developers , Applications" entry at 15-1132.00 was no longer in use and instructed utilizing either the "Software 
Developers" e ntry at 15-1252.00 or the "Software Quality Assurance Analyst and Testers" entry at 15-1253.00. The 
Petitioner 's proffered job description aligns with the category entry contained at 15-1252.00 "Software Developers." 
The Director issued a request for evidence (RFE) advising the Petitioner that they noted concerns with 
the accompanying LCA such that it may not correspond to their proffered job. Specifically, the 
Director questioned whether the Petitioner was an H-lB dependent employer contrary to what the 
Form 1-129 and LCA reflected. And the Director requested additional evidence to evaluate if the 
Beneficiary was qualified to undertake the duties of a specialty occupation. 
In its RFE response, the Petitioner provided a copy of its payroll summary generated by the retail 
accounting software program it utilizes, a list of the total number of employees it employed at the time 
of filing the petition, and its IRS Form 941 for the periods January, February, March and April, May, 
June of 2022. The Petitioner also submitted an evaluation of the Beneficiary's education and 
experience purporting to equate the Beneficiary's credentials to a U.S. bachelor's degree in computer 
science. The Director denied the petition because the numerous misstatements and inconsistent 
representations of facts by the Petitioner impeded a reliable evaluation of the Petitioner's H-lB 
dependent status. 
II. NON-CORRESPONDING LABOR CONDITION APPLICATION 
A petitioner seeking to file an H-lB petition must accompany that petition with a certified LCA. 
Section 212(n)(l) of the Act, 8 U.S.C. § 1182(n)(l); 20 C.F.R. § 655.73 l(a). 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 )(1 ). A certified LCA memorializes the attestations a petitioner makes 
regarding the employment of the noncitizen in H-lB status. See 20 C.F.R. § 655.734(d)(l)-(6). 
A. Legal Framework 
Whilst DOL is responsible for certifying that the Petitioner has made the required LCA attestations, 
United States Citizenship and Immigration Services (USCIS) evaluates whether the submitted LCA 
corresponds with the Petitioner's H-lB petition. See ITServe Alliance, Inc. v. DHS, 590 F. Supp. 3d 
27, 40 (D.D.C. 2022) (noting that 20 C.F.R. § 655.705 requires USCIS "to check that the [H-lB] 
petition matches the LCA"); see also United States v. Narang, No. 19-4850, 2021 WL 3484683, at *1 
(4th Cir. Aug. 9, 2021)(per curiam)("[USCIS] adjudicators look for whether [the] employment [listed 
in the H-lB petition] will conform to the wage and location specifications in the LCA"). USCIS does 
not supplant DOL's responsibility with respect to wage determinations when it evaluates the 
information as contained in the LCA to ensure it "corresponds with" the content of 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 .... "). See also Matter of Simeio Solutions, 26 I&N Dec. 542, 546 n.6 
(AAO 2015). 
Section 212(n)(3)(A) of the Act, 8 U.S.C. § 1182(n)(3)(A), defines an H-lB dependent employer as 
an employer that: 
(i)(I) has 25 or fewer foll-time equivalent employees who are employed in the United States; 
and (II) employs more than 7 H-lB nonimmigrants; 
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(ii)(I) has at least 26 but not more than 50 full-time equivalent employees who are employed 
in the United States; and (II) employs more than 12 H-lB nonimmigrants; or 
(iii)(I) has at least 51 fulltime equivalent employees who are employed in the United States; 
and (II) employs H-1 B nonimmigrants in a number that is equal to at least 15 percent of the 
number of such full-time equivalent employees. 
An LCA which does not accurately indicate the employer's H-lB dependency status cannot be used 
to support a H-lB petition. 20 C.F.R. § 655.736(g)(l). 
B. Analysis - Non-correspondent LCA 
The Director notified the Petitioner of their concerns regarding the Petitioner's self-identification of 
its H-lB dependency status and issued an RFE. The Director may request additional evidence when 
they evaluate eligibility for immigration benefits. 8 C.F.R. § 103.2(b)(8). The Director suggested 
that, if the Petitioner was not an H-lB dependent employer, it submit evidence which could include 
but was not limited to: 
• A statement explaining how many U.S. and H-lB employees the Petitioner employed at the 
time the petition was filed; 
• Copies of the Petitioner's Forms 941, Employer's Quarterly Federal Tax Returns, for the 
quarter immediately prior to the petition's filing date and the quarter the Petitioner filed the 
petition; 
• The Petitioner's state quarterly wage reports for all employees and for all state for the two 
quarters immediately prior to the filing date of the petition; or 
• A table containing the names, current immigrant or nonimmigrant status, and USCIS receipt 
number if applicable for all employees employed by the Petitioner at the time it filed the 
petition. 
As stated above, the Petitioner provided a copy of its payroll summary generated by the retail 
accounting software program it utilizes, a list of the total number of employees it employed at the time 
of filing the petition, and its IRS Form 941 for the periods January, February, March and April, May, 
June of 2022 in their RFE response. But the evidence did not resolve concerns about the Petitioner's 
H-lB dependent status. Instead, the evidence only contributed to the opaque nature of the Petitioner's 
representations in this regard. In the period preceding the filing of the petition, USCIS records reflect 
the Petitioner filed 10 petitions. At the time of filing, the Petitioner represented it employed eight 
individuals. But in its RFE response, the Petitioner provided a chart listing six individuals. And the 
Petitioner submitted other evidence that conflicted further with these representations. For example, 
the IRS Forms 941 for the periods January, February, March and April, May, June of 2022 reflected 
the Petitioner paid wages to one and two employees respectively. And the payroll summary generated 
by the retail accounting software program the Petitioner utilized listed three employees who were 
categorized as "all employees from all locations" from June 1, 2022 to June 30, 2022 and therefore 
did not relate only to the Petitioner's H-lB employees at the time of filing the petition. 
On appeal, the Petitioner submits additional evidence that does not clarify the record successfully. In 
addition to what it submitted in response to the Director's RFE, the Petitioner submits its IRS Form 
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941 for the period July, August, and September 2022 and copies of paystubs for various periods in the 
first six months of 2022 for five out of the six individuals appearing on its list of the total number of 
employees it employed at the time of filing the petition. But this evidence did not resolve or reconcile 
any of the inconsistencies present in the record. 
Although the evidentiary standard in immigration proceedings is the lowest preponderance of the 
evidence standard, the burden is on the Petitioner alone to provide material, relevant, and probative 
evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. 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 ofburden 
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 to the governing statutory, regulatory, and policy provisions 
sufficient to have the issue decided on the merits. Any inconsistencies in the record must be resolved 
by the Petition by independent objective evidence pointing to where the truth lies. See Matter ofHo, 
19 I&N Dec. 582 (Comm'r 1988). 
Essentially, the Petitioner's submissions into the record prior to and at appeal paint a picture of 
considerable unreliability. So we are unable to credibly determine how many total employees the 
Petitioner employed as well as how many H-lB employees it employed. And without determining 
these critical facts, we cannot ascertain the Petitioner correctly identified itself as an employer who is 
not H-lB dependent. Consequently, we must conclude the LCA the Petitioner submitted as non­
correspondent with the petition it filed. 
III. CONCLUSION 
As the certified LCA in the 
record identified the Petitioner as an employer that is not H-1 B dependent, 
and the Petitioner has not established by a preponderance of the evidence that they are not H-lB 
dependent, the LCA is not in correspondence with the proffered position. An H-lB petition cannot be 
approved without a corresponding LCA. See section 212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 
So the petition is unapprovable as filed and this appeal must be dismissed. 
ORDER: The appeal is dismissed. 
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