dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF KRE-. INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 20.2017 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting firm. seeks to temporarily employ the 
Beneficiary as a ··software engineer"' under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section I 01 (a)( 15)(fl )(i)(h ). 8 U.S.C. 
~ 1101(a)(15)(H)(i)(b). The I-1-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. 
After initially approving the petition. the Director of the Vermont Service Center revoked the 
approval. concluding that the Petitioner had not established that the claimed in-house project for the 
Beneficiary was genuine, and therefore. that there was specialty occupation work available for the 
Beneficiary for the validity period requested. 
On appeal. the Petitioner asserts that the Director· s decision was in error.
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Upon de novo review. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval or an I-1-lB petition. 
on notice and an opportunity to rebut. pursuant to 8 C.F.R. ~ 214.2(h)(ll)(iii). \vhich 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: 
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Although the Petitioner indicated in Part 2. section l.b. of the Form l-2908. Notice of Appeal or Motion. that it would 
submit a "'brief and/or additional evidence ... within 30 calendar days:· we have not received any additional materials to 
date. 
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Matter ofKRE-, Inc. 
(I) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition. or if the beneficiary is no longer receiving 
training as 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 
(J) The petitioner violated terms and conditions of the approved petition: 
or 
(-/) The petitioner violated requirements of section I 0 I (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. If the petition is revoked in part the remainder of the petition shall 
remain approved and a revised approval notice shall be sent to the petitioner 
with the revocation notice. 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below 2• we conclude that the 
Director's statements in the notice of intent to revoke (NOIR) were adequate to notify the Petitioner 
of the intent to revoke the approval of the petition. Furthermore. we conclude that the Director's 
decision to revoke approval of the petition accords with the evidence in the record of proceedings. 
and that the Petitioner has not overcome the grounds for revocation indicated in the NOIR. 
Specifically, the Petitioner has not demonstrated that it has a valid in-house project. and 
that there would be specialty occupation work available for the Beneficiary for the entire validity 
period requested on that particular project. 3 
In the NOIR, the Director informed the Petitioner that ·'project documentation you submitted may be 
copied from various existing projects similar to In its response. the Petitioner stated that 
upon ··r a] search of publicly available internet sources one is bound to find traces about the 
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While we may not discuss every document submitted, we have reviewed and considered each one. 
3 
The Petitioner subsequently filed an amended petition indicating that the Beneficiary would work at a client site on a 
different project. 
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Matter ofKRE-. Inc. 
functionality of as it is a federal program" and that ··[t]unctionalities for [are] 
originally from a Federal program.'' However, the Petitioner's explanation does not resolve the 
concerns arising from the submitted project documentation. A review of the submitted 
training manual, user manuaL and · indicates that they are actually from the 
internal product, not the Petitioner's claimed product. 
For example, the 'which lists the authors as the Petitioner's employees and 
is marked "Internal & Restricted,'' includes a screenshot on page 31 that uses an· 
email address and a link to the website to view a job opening. Similarly. although the 
training document has a cover page indicating the title as ''Training Manual Creation of 
Applicant Data" and the writers as the Petitioner's employees, the actual document lists the header 
title as · Training Manual for Adding External Applicant Data." Further, it includes 
explanations for what to do ''[i]f an employee of the has referred you to this job opening" and 
uses an · email address on page 28. On page 30 it references the terms and agreements 
of '·employment with the The·· Manager Self Service User ManuaL" 
which lists the Petitioner's name and indicates that it is '·Internal & Restricted ... references the 
business unit On another page, it references 
which according to the website at http://'Aww. is part of the 
The Petitioner must resolve these inconsistencies in the record with independent. 
objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582. 591-92 (BIA 
1998). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. !d 
The Petitioner describes as a ·'web portal application which matches employers with 
potential employees who are disadvantaged or have barriers to employment" and will allow 
"employers to match employees (blue collar) and to take advantage of certain federal programs for 
their benefit." However, the submitted project documentation does not support the Petitioner's 
description. For example, the indicates that the product is for a company's 
internal general recruitment process. The document · Manager" describes 
as "a collaborative application that enables employees to view and update their own 
profiles" and Manager allows managers to create and view reports for their employees. The 
Manager Self Service User Manual'' supports the functionality described in the 
& Manager" document. The "Training Manual Creation of Applicant" states that it 
"will help the applicant to search and apply for jobs posted on the corporate website. and to submit 
view and update their resumes online." In alL the submitted documents indicate that 1s an 
internal staffing tool used by another company, the 
A few errors or minor discrepancies are not reason to question the credibility of a beneficiary or a 
petitioner seeking immigration benefits. See. e.g .. S/Jencer Enterprises. Inc. r. United Stales, 345 
F.3d 683, 694 (9th Cir. 2003 ). However, any time a petition includes numerous errors and 
discrepancies, and a petitioner does not resolve those errors and discrepancies after USCIS provides 
an opportunity to do so, those inconsistencies will raise serious concerns about the veracity of the 
petitioner's assertions. Doubt cast on any aspect of a petitioner's proof may undermine the 
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Matter of KRE-. Inc. 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
of1io. 19 I&N Dec. at 591. In this case. the above leads us to conclude that the evidence regarding 
is not credible. 
For these reasons, the Petitioner has not established the existence of its own in-house project 
and. therefore, that it had non-speculative employment available for the Beneficiary for the entire 
validity period at the time of tiling. The Petitioner must establish eligibility at the time of tiling the 
nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 
8 C.F.R. § 103.2(b)(l). 
The agency made clear long ago that speculative employment is not permitted 111 the H-1 B 
program. For example, a 1998 proposed rule documented this position as follows: 
Historically. the Service has not granted H-1 B classification on the basis of 
speculative, or undetermined, prospective employment. The H-1 B classification is 
not intended as a vehicle for an alien to engage in a job search within the United 
States. or for employers to bring in temporary f()reign workers to meet possible 
workforce needs arising from potential business expansions or the expectation of 
potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute. the Service must first 
examine the duties of the position to be occupied to ascertain whether the duties of 
the position require the attainment of a specific bachelor's degree. See section 214(i) 
ofthe Immigration and Nationality Act (the ''Act"). The Service must then determine 
whether the alien has the appropriate degree tor the occupation. In the case of 
speculative employment. the Service is unable to perform either part of this two­
prong analysis and. theref()re. is unable to adjudicate properly a request f()r 11-1 B 
classification. Moreover, there is no assurance that the alien will engage in a 
specialty occupation upon arrival in this country. 
Petitioning Requirements tor the H Nonimmigrant Classification. 63 Fed. Reg. 30.419. 30.419-20 
(proposed June 4, 1998) (to be codified at 8 C.F.R. pt. 214 ). 
Ill. CONCLUSION 
The Petitioner has not credibly established the availability of specialty occupation work t()r the entire 
period requested and, therefore. has not overcome 
the Director's grounds f(w revocation. 
ORDER: The appeal is dismissed. 
Cite as lvfatter ofXRE-. Inc., ID# 765334 (AAO Dec. 20. 20 17) 
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