dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "software 
. engineer" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act)§ 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 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, California Service Center, denied the petttJon. The Director concluded that the 
evidence of record is insufficient to establish that: (1) the proffered position qualifies as a specialty 
occupation; and (2) the Beneficiary is qualified to serve in a specialty occupation position in 
accordance with the applicable statutory and regulatory provisions. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
conclusions are erroneous. 
Upon de novo review, we will dismiss the appeal. 
I. 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. 
Matter of N-, Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(!)] 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 
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 mm1mum 
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)(l) 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 
of language 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 of W-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. 
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Matter of N-, Inc. 
As such and consonant with section 214(i)( 1) 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. Chertoff, 484 F.3d 139, 147 (lst 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, US CIS regularly approves H-1 B petitions for qualified 
individuals who are to be employed as engineers , computer scientist s, certified public accountants, 
college professors, and other such occupations. These profess ions , for which petitioners have 
regularly been able to establi sh 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-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS doe s not simply 
rely on a position ' s title. The speci fic duties of the proffered position , combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a spec ialty 
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 theoretic al and practical application of a body of highly specialized knowled ge, 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. 
B. The Proffered Position 
On the Form I-129, Petition for a Nonimmigrant Worker , the Petitioner described itself as a 
22-employee company that engages in the business of "Software Services and Application 
Development for proprietary The Peti tioner seeks to employ the Beneficiary as a 
"software engi neer" from October 1, 2015, to July 29,2018. 
The labor condition application (LCA) submitted to support the visa petition states that the proffered 
position conesponds to Standard Occupational Classification (SOC) . code and occupation title 
15-1131, "Comp uter Programmers, " from the Occupational Information Network (O*NET). The 
LCA furth er states that the proffered position is a Levell, entry-level, position. 
In its cover letter , the Petition er explained that it "has built a multi channel digital ordering 
(Software as a Service - SaaS) platform - .. [that] is an online food ordering 
serv ice." The Petitioner stated that the Beneficiary "will be designated to primarily work at the 
[Petitioner 's] business premises in CA on [its] internal software product suite -
The Petitioner then described the duties of the proffered position as follows 
(verbatim): 
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Matter of N-, Inc. 
(The Beneficiary] will be responsible for evaluating customers 
operational feasibility by problem definition, requirements analysis, solution 
development, and propo sed solutions . His dutie s will include documenting solutions 
by developing flowchart s, layouts, diagrams , charts, code comme nts and clear code 
for Preparing and installing solutions by determining and designing 
system specifications, standar ds, and programming based on 
customers; Improving customer operations by conducting systems 
analysis, recommending changes in policie s and procedures and collecting, analy zing, 
and summarizing development and service issues of old and new 
customers. 
In response to the Director's request for evidence (RFE); the Petitioner elabo rated upon the duties of 
the proffered position, as well as the time spent on each duty, as follow s: 
Tasks Difficulty %Time 
Level to be 
Spent 
1. Develops information systems by designing , developin g, and 5 25% 
installin g software solutions .. Determine s operat ional feasibility by 
evaluating analysis, problem definition , requirements , solution 
development, and proposed solutions. Documents and demon strates 
solutions by developing documentation , flowcharts , layouts, diagrams, 
chart s, code comments and clear code . 
2. Prepare s and install s solutions by determinin g and designing system 4 15% 
specifications, standards, and programming. Improves operations by 
conducting systems analysis; recommending changes in policies and 
procedures. 
3. Obtains and licenses software by obtaining required informati on from 4 15% 
vendor s; recommending purchases; testing and approvi ng products. 
4. Updates job knowledge by study ing state-of-the-art development· 4 15% 
tool s, programmmg techniques, and computing equipment ; 
participating m educational opportunities ; reading professional 
publications ; maintainin g personal networks ; participatin g m 
profe ssional organizations. 
5. Protect s operations by keeping information confidential. Provides 4 20% 
information by collecting, analyzing , and summariz ing development 
and service issues . 
6. Accomplishes engineerin g and organization mission by completing 3 5% 
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Matter of N-, Inc. 
related results as needed. 
7. Develop s software solutions by stud ying information needs; 4 5% 
conferring ·with users; studying systems flow , data usage , and work 
processes; investigating problem areas ; following the softw are 
development lifecycle. 
Notes on Difficulty Level 
1 Novic e 
2 Some Exposure 
3 Famili arity with Computer s 
4 Bachel or's 
5 Master ' s 
The Petitioner stated that the proffered position requires a bachelor 's degree in comput er science, 
electronics engin eering , computer information systems, or a related field, plus a minimum of two to 
four "years of related experienc e. 
C. Analysi s 
We find that the Petitioner has not credibly and sufficientl y demonstrated what work its compariy or 
the Beneficiar y will perform on the product. Accordingl y, we cannot d etermine 
whether the proffered position qualifie s as a specialt y occupation . 
· As duly noted by the Director , is a product that belon gs to the corporation 
The evidence of record contains , for example , the "Terms of User Agreement " which 
authorizes the use of the product by ' a corporation, 
incorporated under the laws of the State of Delaware." The U.S. Patent and Trademark Office 
application to trademark the ' mark also identifies '' as the 
applicant. Other evidence in the record , such as marketin g documents, invoice s, and bank 
statement s, similarl y reference ' as the corporate entity which own s 
The Petitioner has not sufficientl y explained the nature of its relation ship to 
That is, the Petiti oner has not explained the role s, re sponsibilities , division of labor, and other salient 
aspects of the relationship between these two companies with respect to the 
product .1 The Petitioner also has not submitted contract s or other evidence establishing the actual 
1 We note that the Petitioner initially signed the Attorney- Client Agreement for attorney s ervices to trademark the 
mark. Subsequentl y, however, the actual trademark application was filed by not 
the Petitioner . We also note that the website states that · was copyrighted by 
The website also states that is "A Product of and is "Brought ~o you by [the 
Petitioner] ." Furthermore, and the Petition er share the same address. In a proposal to 
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Matter of N-, Inc. 
terms of agre ement, if any, between and the Petitioner. Without additional 
information and evidence , we cannot determine whether the Petitioner has actual work available on 
the project , and can make a bona fide offer of empl oyment for such work on the 
project ? Whil e the Petitioner and may share a common 
owner , a corporation is neverthel ess a separate and distinct legal entity from its owners or 
stockholders. See Matter of M-, 8 I&N Dec. 24, 50-51 (A.G., BIA 1958); Matter ofAphrodite Invs. 
Ltd., 17 I&N Dec. 530 (Comm'r 1980); and Matter ofTessel, Inc., 17 I&N Dec. 631 (Act. Assoc. 
Comm'r 1980) . 
Nevertheless, ass uming arguendo that is a product of the Petition er or that the 
Petitioner is otherwise authoriz ed to perform work on the Petiti oner has not 
submitted sufficient evidence to demonstrate exactly what work the Petitioner has available and will 
perform on the project. 
The Petitioner provided generali zed, broad description s of the work to be performed on the 
project. The "milestone s" described in the " Product Overvi ew with Milestone Devel opment 
.Plan" document are broadly termed and do not explain the actual work to be performed , and by 
whom. For example, the "mile stones" to be completed include a " Private-Label and POS integration 
release " in May 2016 and release" in December 2016. Howev er, there is 
no further explanation of what specific tasks are needed to achieve these broad milestones , who will 
perform the se specific tasks , how m any work hour s a re needed to accomplish each task, or other 
pertinent information about the work to the compl eted. The Petitioner likewi se provided a "Detailed 
Work streams" chart which lists the positions , wages by hour , location of work, and numb er of hour s 
per month , but doe s not describe in detail the actual work to be performed. 
In addition, the product overview lists the "Core Team" as: (1) the Petition er's CEO/Fo under; (2) an 
individual in "Engineering"; (3) an individual in "Marketing & Operations" ; and (4) an individual in 
"Busine ss Development." Howev er, there is insufficient evidence establishing that the se "Core 
Team" member s were actively working for the Petitioner as of the time of filin g. There is 
insufficient evidence that the Petitioner emplo ys or has emplo yed the individuals in "Engineering" 
and " Business Development " within the past severa l years, as neither individual appear s on the 
Petitioner 's organizat ional chart , 2013 and 2014 W-2 forms , or 2015 payroll informati on, among 
Einstein Bros Bagels, the Petition er submitted a "General Company Background" claiming that it is the "Parent 
Organization " of Howeve r, the Petitioner's federal tax returns do not indicate that the Petitioner 
owns stock in any other foreign or domestic corporation . The proposal also states that the company, identified as "[The 
Petitioner] / " has "80+" full-time employee s. This is significantly higher than any number of emp loyees 
the Petition er h as previously claimed , and raises the question of whether has its own set of 
employees. Overall, while it is evident that the Petitioner and are related , the specific relationship 
between the two companies is unclear . 
2 The California Secretary of State website indicates that the Petitioner's corpor ate status has been suspended . That is, 
the Petitioner's powers, rights and privileges, including the right to use its corporate name in California, were suspended. 
See attached print-outs. The Petitioner's corporate status raises additional questions regarding its abilit y to make a bona 
fide offer of employment. · · 
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Matter of N-, Inc. 
other documents. While the inoividual in "Marketing & Operations" appears to have been a former 
employee , she was not actively working for the Petitioner at the time of filing, according the 
Petitioner's organizational chart, 2015 Quarter 1 Form 941, and 2015 payroll records.3 Even the 
Petitioner ' s CEO/Founder was not listed in the Petitioner's payroll records for all months in 2015. 
In the five months of 20 15 that he appeared on the payroll, he was listed as having worked zero 
hours. The Petitioner has not explained and documented who constitutes actual, 
current "Core Team." 
The Petitioner also has not specifically identified which of its other employees are actively working 
on the product. The Petitioner ' s organizational chart does not specifically identify 
which employees have been assigned to the team.4 In fact, the organizational chart 
-which lists 36 different position s (not including contracted positions)- does not contain any of the 
11 positions the Petitioner listed in a separate chart' depicting the required labor or "Detailed Work 
streams" for the project (i.e., an Engagement Manager, Onsite - Manager, Project 
Manager, Sr. Architect, Test Manager, Android Developer, iOS Developer, Windows Mobile 
Developer , Web Developer , Manual Tester, and Ul Designer).5 
Notably, none of the 11 positions listed on the "Detailed Work streams" chart will perform full-time 
work. To illustrate, for the entire month of April 2015, the Engagement Manager will work zero 
hours, the Onsite ~ Manager and Sr. Architect will work a total of 0.5 hours each, and six other 
positions will work only one hour each. The position having the most hours as of the end of Phase 
II, which ends in June 2017, is the Manual Tester position, which will have worked a total of 27 
hours for the three-month period of April to June, 2017. Overall, the Petitioner has not sufficiently 
explained and documented its actual need for additional , full-time staffing on the 
project. 
"[I]t is incumbent upon the Petitioner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 T&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective eviden·ce 
pointing to where the truth lies. !d. at 591-92. "Doubt cast on any aspect of the Petitioner ' s proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. " ld. at 591. 
It is also important to note the Director's finding that the Petitioner had previously . obtained 
approvals for at least 20 H-1B beneficiaries to work on the project. The Director 
also found that the Petitioner filed at least 15 new H-lB petitions to employ additional workers on 
3 This individual was listed as a . paid employee ~n the Petitioner's March, April, May, and June payroll records. 
However, she was listed as having worked zero hours in each of these months. She was no longer on the Petitioner 's 
July payroll records and thereafter. 
4 The organizational chart does, however , specifically identify two of the Petitioner 's contractors that are on the 
team (i.e., the UJ Architect and Ul Designer, both identified a s a ' . 
' The Petitioner · listed an on-site UJ Designer as one of the required personnel on this chart. It is not clear whether this 
position is the same as the contracted Ul Designer position on the organizational chart. 
7 
(b)(6)
Matter of N-, Inc. 
the project starting from October 1, 20 15. The record therefore indicates that the 
Petitioner has requested to employ at least 35 individuals on the project. In contrast, 
the Petitioner stated that it "will employ approximately I1 people to work out of [its] 2 office 
premises," and listed only II positions on the "Detailed Work strea ms" chart as required for the 
project.- Moreover, the Director found that four of the Petitioner's H-1 B 
beneficiaries who were supposed to have been assigned to.the project were actually 
assigned to work in states far from Cal~fomia. The Petitioner has not provided an explanation, 
corroborated by objective evidence, reconciling its various claims regarding the required personnel· 
for the project.6 Again, it is incumbent upon the Petitioner to resolve 
inconsistencies in the record, and doubt cast ·on any aspect of the Petitioner's proof may lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition." Id. at 591-2. 
Regarding the sufficiency of the Petitioner 's work space, the Petitioner initially indicated that the 
Beneficiary will work on the project from its office located in 
California. The Director also found that the 35 H-1 B beneficiaries whom the Petitioner claimed 
were to work on the project were also supposed to be working from the same 
office. However, the lease for this particular office address reflects that these premises consist 
of only 250 square feet. The Petitioner has not sufficiently explained and documented how its office 
premises were sufficient to house the entire team, even at the time it entered into the 
lease on September 11, 2014. While the Petitioner has subsequently leased a larger office located in 
California,. this new lease nevertheless does not overcome the Petitioner's initial lack of 
office space. A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 . 
(Assoc. Comm'r 1998). 
. . 
· Considering all of the above factors - including the Petitioner's vague descriptions of the work to be 
done on the inconsistent levels of staffing claimed, as well as the lack of adequate 
office space - we cannot find that the Petitioner has sufficiently demonstrated what work it has 
available and will actually perform on the project. 
Moreover, the Petitioner has not consistently and credibly demonstrated what work, if any, the 
Beneficiary will actually perform for the project. 
For instance, there is no specific mention of the Beneficiary or the role of the Software Engineer in 
the "Product Vision/Business Plan," "Product Overview with Milestone Development Plan,". 
"Detailed Work streams" chart, or any other project document about The Petitioner 
has not specifically explained how the Beneficiary' s duties correlate to the "milestones" described in 
the project overview, or how the Beneficiary's role fits in within the 11 other positions listed in the 
"Detailed Work streams" chart. 
6 On appea l, the Petitioner does not directly contest the Director 's findings. Instead, the Petition er vaguely states that the 
Service erre d in "any and all other and/or relatin g issues raised .in the denial or in this appeal." 
8 
Matter of N-, Inc. 
The Petitioner's descriptions of the proffered duties are also vague and duplicative. For example, 
the Petitioner stated that the Beneficiary will spend 25% of his time on the duties of: developing 
information systems by designing, developing, and installing software solutions; determining 
operational feasibility by evaluating analysis, problem definition, requirements, solution 
development, and proposed solutions; and documenting and demonstrating solutions by developing 
documentation, flowcharts, layouts, diagrams, charts, code comments and clear code. The Petitioner 
then stated that the Beneficiary will spend another 15% of his time on the duties of: preparing and 
installing solutions by determining and designing system specifications, standards, and 
programming; and improving operations by conducting systems analysis; recommending changes in 
policies and procedures. The Petitioner has not adequately distinguished the first set of duties from 
the second set of duties, even though they account for separate percentages of time. 
With regard to the first set of duties, the Petitioner indicated that it is a "Difficulty Level" of 5, 
which requires a master's degree. However, the Petitioner has never claimed that the proffered 
position requires a master's degree 7 Nor has the Petitioner claimed that positions within the 
"Computer Programmers" occupational classification normally require a master's degree. Rather, 
the Petitioner repeatedly states that a bachelor's degree is the normal minimum requirement for this 
as well as other positions within the "Computer Programmers" occupational classification. We 
observe that the Petitioner designated the proffered position as a Level I (entry) position, which 
indicates that the proffered position is a comparatively low, entry-level position relative to others 
within the occupation. 8 The Petitioner's designation of this position as a Level I, entry-level position 
further undermines the Petitioner's characterizations of the proffered position9 
7 The Petitioner also does not claim that the Beneficiary possesses a master's degree or its equivalent. 
8 A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a 
basic understanding of the occupation. These employees perform routine tasks that require limited, if 
any, exercise of judgment. The tasks provide experience and familiarization with the employer's 
methods, practices, and programs. The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored and reviewed for 
accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship 
are indicators that a Level I wage should be considered. 
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 1_2009.pdf 
9 
The Petitioner's designation of this position as a Levell, entry-level position undermines any claim that the position is 
particularly difficult, particularly as compared to other positions within the same occupation. Nevertheless, a Level I 
wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a Level IV 
wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or lawyers), a 
Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its 
equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as 
a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a 
specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not itself 
conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
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Matter of N-, Inc. 
Finally, we note the Petitioner's statement that the Beneficiary "will be designated to primarily work 
at the [Petitioner's] business premises in CA on [its] internal software product suite -
The use of the word "primarily" denotes that the Beneficiary may also be 
assigned to perform work other than at the Petitioner 's business premises and/or on the 
project. We also note the Petitioner 's Employment Agreement s with the Beneficiary which 
state that the Beneficiary "shall also perform such other duties in the ordinary course of business as 
performed by other persons in similar such position s, as well as such other reasonable duties as may 
be assigned from time to time by the [Petitioner]. " 10 These Employm ent Agreements further state · 
that the Beneficiary 's "duties shall be rendered at [Petitioner 's] business premises or at such other 
places as the [Petitioner] may require. " When considered as a whole, the evidence of record Jacks a 
sufficient, detailed explanation of all the work the Beneficiary will be assigned to perform during the 
entire validity period requested , inchiding the location(s) of such work and the specific job duties to 
be performed. 
For all of the above reasons , we find the evidence of record insufficient to demon strate that the 
Petitioner has work available to perform on the project , and that the Petitioner will 
assign the Beneficiary to work on the project in the manner asserted. We .are 
therefore precluded from understanding the substantive nature of the proffered position and its 
constituent duties. 
Consequently , we are precluded from 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 determine s·(l) the 
normal minimwn educational requirement for 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. 
Accordin gly, as the evidence does not satisfy any ofthe criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), it 
cannot be found that the proffer ed position qualifie s as a s pecialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
H. BENEF ICIARY QUALIFICATIONS 
The Director also found that the Beneficiary is not · qualified to perform the duties of the proffered 
position . Howe ver, a· beneficiary 's credentials to perform a particular job are relevant only when the 
job is found to be a specialty occupation. As discuss ed in this decision, the proffered position does 
10 
The Petitioner submitted an "amended " Empl oyment Agreemen t in response to the Director 's RFE which had noted 
several impermi ssible provisions relating to the LCA in the original Emplo yment Agreement. Both Employment 
Agreement s contain the above statem ents. · 
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Matter of N-, Inc. 
not qualify as a specialty occupation. Therefore, we need not and will not address the Beneficiary's 
qualifications further. 
III. CONCLUSION 
The Petitioner has not established that the proffered position, more likely than not, qualifies as a 
specialty occupation. 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 of"Otiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of" N-, Inc., ID# 16822 (AAO May 31, 20 16) 
I I