dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 7, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and consulting company, seeks to temporarily employ the 
Beneficiary as a "systems/programmer analyst" under the H-1B 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-1B 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 Director, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director violated 
the Petitioner's constitutional right and abused her discretion by not granting additional time to 
respond to the request for evidence (RFE). 1 The appeal will be dismissed. 
I. LAW 
The regulatory provision at 8 C.F.R. § 103.2(b)(8)(iv) states the following: 
A request for evidence or notice of intent to deny will be communicated by regular or 
electronic mail and will specify the type of evidence required, and whether initial 
evidence or additional evidence is required, or the bases for the proposed denial 
sufficient to give the applicant or petitioner adequate notice and sufficient 
information to respond. The request for evidence or notice of intent to deny will 
indicate the deadline for response, but in no case shall the maximum response period 
provided in a request for evidence exceed twelve weeks, nor shall the maximum 
1 On the Form l-290B, Notice of Appeal or Motion, the Petitioner stated that it would submit a brief within 30 calendar 
days of filing the appeal. To date, we have not received a brief or additional evidence from the Petitioner. Therefore, we 
consider the record complete as currently constituted. 
Matter of B-, Inc. 
response time provided in a notice of intent to deny exceed thirty days. Additional 
time to respond to a request for evidence or notice of intent to deny may not be 
granted. 
II. ANALYSIS 
In the RFE dated June 3, 2015, the Director stated that the Petitioner's response must be received by 
August 29, 2015, which was 87 days from the date of the RFE letter. The Director also stated that 
the Petitioner was provided with the "maximum period allowed" for responding to an RFE, and that 
the time period for responding could not be extended. 
Accordingly, we find that the Director did not abuse her discretion in not granting additional time for 
the Petitioner to respond to the RFE because she granted the maximum allowable time frame under 
8 C.F.R. § 103.2(b)(8)(iv): 
With respect to a constitutional challenge, we have no authority to entertain constitutional challenges 
to a USCIS action. Cf Matter of Salazar-Regino, 23 I&N Dec. 223, 231 (BIA 2002) (BIA lacks 
authority to rule on constitutionality of statutes it administers). Even if we had the authority to 
entertain constitutional challenges, the Petitioner has not shown that any violation of the regulations 
resulted in "substantial prejudice" to the petitioning company or the Beneficiary. See De Zavala 
v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an alien "must make an initial showing 
of substantial prejudice" to prevail on a due process challenge). 2 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 3 
ORDER: The appeal is dismissed. 
Cite as Matter of B-, Inc., ID# 17061 (AAO July 7, 20 16) 
2 
The Petitioner could have submitted additional evidence on appeal for us to consider. However, the Petitioner elected 
not to submit a brief or additional evidence despite stating that it would do so on the Form 1- 2908. "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). 
3 
As the ground discussed above is dispositive of the Petitioner's eligibility for the benefit sought in this matter, we will 
not address and will instead reserve our determination on the additional issues and deficiencies that we observe in the 
record of proceedings with regard to the approval of the H -1 B petition. 
2