dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 16, 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 "Programmer Analyst" under the H -1 B nonimmigrant classification. See 
Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The Director, Vermont Service Center, denied the petition. The matter is now before us on appeal. 
Upon de novo review, we will dismiss the appeal. 
I. ISSUE 
The issue before us is whether the proffered position qualifies as a specialty occupation m 
accordance with the applicable statutory and regulatory provisions. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(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.P.R.§ 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ ( 1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
Matter of S-S- LLC 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)( 4)(iii)(A), to qualifY as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(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. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) 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. SeeK 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 COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-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 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), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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. See 
Royal Siam Corp. v. Cherto.ff, 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"). Applying this standard, USCIS regularly approves H-1 B petitions for qualified 
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Matter of S-S- LLC 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-1B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 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. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. !d. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
B. The Proffered Position 
On the Form I-129, the Petitioner indicated that it is a software development and consulting 
company with zero employees. The Petitioner seeks to employ the Beneficiary in a full-time 
programmer analyst position at a salary of $70,845 per year. The Petitioner indicated that the 
Beneficiary will not work off-site. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position corresponds to Standard Occupational Classification (SOC) code and occupation title 
15-1131, "Computer Programmers," from the Occupational Information Network (O*NET). The 
LCA further states that the proffered position is a Level II position. The LCA lists the Petitioner's 
address as the Beneficiary's sole place of employment. 
In its support letter, the Petitioner listed the duties of the proffered position as follows (verbatim): 
• Correct errors by making appropriate changes and rechecking the program to 
ensure that the desired results are produced. 
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(b)(6)
Matter of S-S- LLC 
• Conduct trial runs of programs and software applications to be sure they will 
produce the desired information and that the instructions are correct. 
• Write, update, and maintain computer programs or software packages to 
handle specific jobs such as tracking inventory, storing or retrieving data, or 
controlling other equipment. 
• Write, analyze, review, and rewrite programs, using workflow chart and 
diagram, and applying knowledge of computer capabilities, subject matter, 
and symbolic logic. 
• Perform or direct revision, repair, or expansion of existing programs to 
increase operating efficiency or adapt to new requirements. 
• Consult with managerial, engineering, and technical personnel to clarify 
program intent, identify problems, and suggest changes. 
• Perform systems analysis and programming tasks to maintain and control the 
use of computer systems software as a systems programmer. 
• Compile and write documentation of program development and subsequent 
revisions, inserting comments in the coded instructions so others can 
understand the program. 
• Prepare detailed workflow charts and diagrams that describe input, output, and 
logical operation, and convert them into a series of instructions coded in a 
computer language. 
• Consult with and assist computer operators or system analysts to define and 
resolve problems in running computer programs. 
In response to the Director's request for evidence (RFE), the Petitioner attested that it "does indeed 
have work available for the Beneficiary." The Petitioner also submitted various agreements, work 
orders, and other 
similar contractual documentation between it and other companies. 
On appeal, the Petitioner explains the nature of its company as a computer consulting company 
which generates revenue by "employing highly qualified computer professionals and contracting 
their services to other businesses (clients), needing their services." The Petitioner further explains 
that "[t]he beneficiary could be working in-house, at the premises of the petitioner, or he could be 
required to work at the client site, depending on the requirement of the project." The Petitioner also 
states that the Beneficiary "will be taking part in [the Petitioner's] in-house project called 
The Petitioner states that it is currently in the development stage of this product, and that 
"[a]t this time, we require the beneficiary's expertise to assist in the development of this software." 
The Petitioner concludes that "the beneficiary holds a managerial position in the company, and 
therefore the petition should be approved." 
C. Analysis 
Upon review of the entire record of proceeding, we find that the Petitioner has not established that it 
has specialty occupation work available for the Beneficiary. 
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Matter of S-S- LLC 
As a threshold matter, there is insufficient evidence to establish that the proffered position qualifies 
as a specialty occupation. We observe that the Petitioner has not stated any specific educational 
requirements for the proffered position. That is, the Petitioner has not claimed that the proffered 
position requires the attainment of a baccalaureate or higher degree in a specific specialty, or its 
equivalent, as the minimum requirement for entry into the occupation. See Section 214(i)(l) of the 
Act; 8 C.F.R. § 214.2(h)(4)(ii). 
The Petitioner claims that the Beneficiary is qualified for the position, and that "[h]is advanced 
college level preparation implies that he has the tools and theoretical knowledge to understand the 
logic, architecture and structure of software packages which will enable him to perform the duties 
mentioned above." However, the test to establish a position as a specialty occupation is not the skill 
set or education of a proposed beneficiary, but whether the position itself qualifies as a specialty 
occupation. Moreover, the Petitioner has not specifically identified what baccalaureate or higher 
degree(s) provides the necessary knowledge of "logic, architecture and structure of software 
packages" to perform the proffered duties. As such, we cannot find that the proffered position 
requires the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, 
such that it meets the definition of a specialty occupation. 
We also find that the proffered position does not qualify as a specialty occupation, as the evidence of 
record is insufficient to establish the substantive nature of the position and its constituent duties. 
For instance, we observe that the job duties are copied verbatim from the O*NET Details Report for 
the occupational category "Computer Programmers" corresponding to SOC code 15-1131. See O*NET 
Online Details Report for "Computer Programmers," http://www.onetonline.org/link/details/15-
1131.00 (last visited Feb. 8, 2016). This type of description may be appropriate when defining the 
range of duties that may be performed within an occupational category, but it does not adequately 
convey the substantive work that the Beneficiary will perform within the Petitioner's business 
operations and, thus, generally cannot be relied upon by a petitioner when discussing the duties attached 
to specific employment. In establishing a position as a specialty occupation, a petitioner must describe 
the specific duties and responsibilities to be performed by a beneficiary in the context of that 
petitioner's business operations, as well as demonstrate a legitimate need for an employee exists, and 
substantiate that it has H -1 B caliber work for the beneficiary for the period of employment requested in 
the petition. Simply submitting a generic job description that is not specific to the Beneficiary and the 
Petitioner's operations is insufficient to establish the substantive nature of the proffered position. 
In addition, the Petitioner has provided seemingly inconsistent descriptions regarding the proffered 
position. Initially on the Form I-129 and LCA, the Petitioner indicated that the Beneficiary will only 
work on-site at the Petitioner's office. However, in response to the Director's request for evidence 
(RFE), the Petitioner attested that it "does indeed have work available for the Beneficiary" and 
submitted staffing contracts between the Petitioner and other companies which suggest that the 
Beneficiary will work off-site for end-clients pursuant to these agreements. 1 On appeal, the 
1 
The companies with which the Petitioner contracted appear to be staffing or mid-vendor companies. For example, the 
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(b)(6)
Matter of S-S- LLC 
Petitioner states for the first time that the Beneficiary will work on the Petitioner's internal 
project. The Petitioner also vaguely states that "[t]he beneficiary could be working in-house, 
at the premises of the petitioner, or he could be required to work at the client site, depending on the 
requirement of the project." 2 Accordingly, it is not clear what the Beneficiary will be doing and 
where he will be working for the entire validity period requested. 
"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Moreover, when responding to an 
RFE or on appeal, the Petitioner cannot make 
material changes to the proffered position.3 A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See In re Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Rather, the Petitioner must establish eligibility at the time of filing, i.e., that the position offered to 
the Beneficiary when the petition was filed merits classification for the benefit sought. See 8 C.F.R. 
§ 103.2(b)(l); Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). A visa 
petition may not be approved based on speculation of future eligibility or after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. at 249. 
There are also other inconsistencies which preclude us from understanding the substantive nature of 
the proffered position. For instance, the Petitioner reports on appeal that "the beneficiary holds a 
managerial position in the company," whereas the Petitioner did not previously indicate that 
Beneficiary would be serving in a managerial position.4 In addition, the Petitioner has referenced 
the Beneficiary in the feminine pronoun case and claimed that the petition was filed as an extension, 
whereas the Form I -129 is a petition for new employment and indicates that the Beneficiary is male. 
Furthermore, the Petitioner's offer letter 
to the Beneficiary states his proffered salary as $72,000 per 
year, whereas the Form I -129 and 
LCA list the proffered salary as $70,845 per year. The Petitioner 
has not explained these inconsistencies. Thus, we must further question the accuracy of the 
Subcontractor Agreement between the Petitioner ("Subcontractor") and ("Contractor") states that 
"Contractor wishes to retain the Subcontractor for the purpose of providing Subcontractor Personnel to perform 
information technology services at work sites of Contractor's client, " The Subvendor Services Agreement 
between the Petitioner ("Subvendor") and states that 
("Client") have entered into an agreement ... [in which] Adecco wishes to have Subvendor supply temporary employees 
directly to Client." 
2 The Petitioner states that "[i]t is also clear that the job offer is not speculative, and that the petitioner has a genuine need 
for the services of the beneficiary, if fact the petitioner would not be able to fulfill its contractual obligations [sic]." 
Although unclear, it appears the Petitioner is stating that the Beneficiary will be placed off-site pursuant to the 
Petitioner's contractual obligations, and in the event these contractual obligations cannot be met, then the Beneficiary 
will be placed on the Petitioner's internal project. 
3 If significant changes are made to the initial request for approval, the Petitioner must file an amended petition rather 
than seek approval of a petition that is not supported by the facts in the record. 
4 
The Petitioner has designated the proffered position as a Level II position on the submitted LCA, indicating that it is a 
position for an employee who has a good understanding of the occupation but who will only perform moderately 
complex tasks that require limited judgment. See U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _I I_ 2009.pdf. 
(b)(6)
Matter of S-S- LLC 
Petitioner's statements and whether the information provided is correctly attributed to this particular 
position and this Beneficiary. Again, "it is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence." Matter ofHo, 19 I&N Dec. at 591. 
Regardless of whether the Beneficiary will be assigned off-site to an end-client(s) or working in­
house on the Petitioner's internal project, there is insufficient evidence in the record of proceeding 
describing the actual duties he will be performing. There are no contracts, letters, or other 
documentation directly from any end-client(s) describing the work the Beneficiary will perform. As 
noted above, where the work is to be performed for entities other than the Petitioner, evidence of the 
client companies' job requirements is critical. See Defensor v. Meissner, 201 F.3d at 387-88. At an 
even more fundamental level, there are no contractual agreements between the Petitioner and any 
end-client(s) specifically for the Beneficiary's services. "[G]oing on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings." In re Soifici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft 
ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Even if the Beneficiary were assigned to the Petitioner's in-house project as 
alternatively claimed, there is insufficient evidence to establish exactly what the Beneficiary will be 
doing on this project. The Petitioner simply stated that the Beneficiary "will be taking part in" and 
will "assist in the development of this software." No additional details specific to his work on this 
particular project has been provided. Moreover, it does not appear that the list of generic job duties 
provided in the Petitioner's support letter are relevant to the Petitioner's operations. For instance, 
the listed job duties include "[ c ]onsult with managerial, engineering, and technical personnel to 
clarify program intent" and "[ c ]onsult with and assist computer operators or system analysts to 
define and resolve problems in running computer programs." The Petitioner, however, has zero 
employees. 5 The Petitioner has not adequately explained how the Beneficiary will be relieved from 
performing non-qualifying duties such that the performance of non-qualifying duties will not affect 
the primary duties of the occupational classification of the position. 6 Without a more meaningful 
description of the duties the Beneficiary will perform within the context of the Petitioner's actual 
operations, we cannot determine the substantive nature of the proffered position and whether it 
qualifies as a specialty occupation. 
In fact, there is insufficient evidence that is a bona fide project of the Petitioner. 
The Petitioner submitted several screen-shots purportedly of the project and a one­
page summary of the product. However, the Petitioner has not provided additional, pertinent 
5 While the Petitioner indicated on the Form I-129 that it has zero employees, it also submitted contracts and other 
documentation indicating that it does have personnel working for its company. More specifically, the Petitioner 
submitted contracts assigning at least two of its personnel to service end-clients. In addition, the Petitioner's tax returns 
show that the Petitioner has been receiving gross receipts or sales, and gross profits. The Petitioner has not clarified the 
employment status of the personnel who have been providing services on behalf of the Petitioner. 
6 It is reasonable to assume that the size of an employer's business has or could have an impact on the duties of a 
particular position. See EG Enterprises, Inc. d/b/a/ Mexican Wholesale Grocery v. Department of Homeland Security, 
467 F. Supp. 2d 728 (E.D. Mich. 2006). 
(b)(6)
Matter of S-S- LLC 
information about the project, such as a detailed timeline, budget, or a list of resources and labor 
needed for the project. The Petitioner also has not explained how it will support this internal project 
given its current staffing and operations. Overall, there is insufficient evidence to establish that the 
Petitioner is actively developing its product and that this is a bona fide project, as 
claimed. 
For all of the above reasons, we find that the Petitioner has not established the substantive nature of 
the work to be performed by the Beneficiary, which therefore precludes a finding that the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature 
of that work that determines (1) the normal minimum 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 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. 
Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a 
specialty occupation. 
We also find that the Petitioner has not established that it has specialty occupation work available for 
the Beneficiary. That is, the Petitioner has not established that it has definite, non-speculative work 
for the Beneficiary for the entire validity period requested. 
As previously discussed, the Petitioner has not established exactly what the Beneficiary will be 
doing and where he will be working (e.g., if he will be assigned to an end-client(s) and what work he 
will perform for the end-client(s), and/or if he will work at the Petitioner's premises). The agency 
made clear long ago that speculative employment is not permitted in the H-1B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of 
speculative, or undetermined, prospective employment. The H-1B 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 foreign 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-1B nonimmigrant under the statute, the Service must first examine the duties ofthe 
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) of the Immigration and 
Nationality Act (the "Act"). The Service must then determine whether the alien has 
the appropriate degree for the occupation. In the case of speculative employment, the 
Matter of S-S- LLC 
Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this 
country. 
Petitioning Requirements for 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). 
It is also worth noting again that the Petitioner must establish eligibility at the time of filing, and that 
a visa petition may not be approved based on speculation of future eligibility. See 8 C.F.R. 
§ 103.2(b)(l); Matter of Michelin Tire Corp., 17 I&N Dec. 248. As such, the Petitioner must have 
secured definitive, non-speculative employment for the Beneficiary at the time of filing. 
On appeal, the Petitioner asserts that the speculative nature of a proposed position is not an 
appropriate ground for denial. The Petitioner cites to two unpublished AAO decisions to support the 
proposition that "the notion of 'speculative employment"' has been "debunked." The Petitioner also 
cites to a Memorandum from Michael Aytes, Office of Adjudications, INS Advises on Interpretation 
of "Itinerary" in H-JB Petitions (Dec. 29, 1995) (Aytes memo), and asserts that pursuant to this 
memorandum, the Petitioner is not required to provide detailed itineraries and contracts for the 
Beneficiary. 
We find the Petitioner's assertions unpersuasive. First, the Petitioner has furnished insufficient 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished 
AAO decisions. In any case, while 8 C.F.R. § 103.3(c) provides that our precedent decisions are 
binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. Second, the Petitioner has not adequately explained how the Aytes memo 
supports the Petitioner's position in this matter. In particular, the Aytes memo states that the 
purpose of the regulation relating to the itinerary requirement "is to [ensure] that alien beneficiaries 
accorded H status have an actual job offer and are not coming to the United States for speculative 
employment." This has not been established here. 
The Petitioner contends that it is unfair to require the Petitioner to demonstrate non-speculative 
employment. The Petitioner contends that it is unable to "prove in advance the duties a beneficiary 
will be handling, before that beneficiary is authorized to start working in the authorized position," 
and that in essence, the Petitioner is in a "catch 22 situation." We acknowledge the Petitioner's 
concerns; nevertheless, the Petitioner has not established how, as a matter of law, speculative 
employment is permissible under the H-1B program. 7 
7 We are without authority to apply equitable forms of relief so as to preclude the agency from undertaking a lawful 
course of action that it is empowered to pursue by statute or regulation. See Matter of Hernandez-Puente, 20 I&N Dec. 
335, 338-39 (BIA 1991). The jurisdiction of the AAO is limited to that authority specifically granted to it by the 
Secretary of Homeland Security. See DHS Delegation No. 0150.1 (effective Mar. I, 2003); see also 8 C.F.R. § 2.1. Our 
jurisdiction is limited to those matters described at 8 C.F.R. § I 03.1 (f)(3)(E)(iii) (as in effect on Feb. 28, 2003). 
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Matter of S-S- LLC 
Finally, the Petitioner contends that "it is unfair and inequitable for the USCIS to deny cases based 
on information that was not requested in the RFE." Despite the Petitioner's assertions, there is no 
requirement for USCIS to issue an RFE or to issue an RFE pertinent to a ground later identified in 
the decision denying the visa petition. 8 The regulation at 8 C.P.R.§ 103.2(b)(8)permits the Director 
to deny a petition for failure to establish eligibility without having to request evidence regarding the 
ground or grounds of ineligibility identified by the Director. As discussed above, the Petitioner's 
initial evidence, such as the job descriptions copied directly from O*NET, was insufficient to 
establish eligibility at the time of filing. The petition was not approvable at the time of filing, and 
the Director was not required to issue an RFE as a matter oflaw. 9 
The evidence of record is insufficient to establish that the Petitioner has secured non-speculative 
specialty occupation employment for the Beneficiary. 
III. CONCLUSION 
As set forth above, we find that the evidence of record does not sufficiently establish that the 
proffered position qualifies for classification as a specialty occupation. We also find that the 
evidence of record is insufficient to establish that the Petitioner has definite, non-speculative work 
for the Beneficiary for the entire validity period requested. The appeal will be dismissed and the 
petition denied for these reasons. 
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; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S- LLC, ID# 15016 (AAO Feb. 16, 2016) 
8 With respect to a constitutional due process 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). 
9 Even if the Director had erred as a procedural matter in not issuing an RFE (or NOlO) relative to the lack of evidence 
to establish the proffered position as a specialty occupation, it is not clear what remedy would be appropriate beyond the 
appeal process itself. The Petitioner has, in fact, supplemented the record on appeal, and specifically requested that the 
AAO consider the new evidence supplied on appeal. 
10