dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 8637574 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 22, 2020 
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 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 of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that the proffered position qualifies as a specialty occupation. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the 
questions in this matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . 
Upon de nova review, we will dismiss the appeal. 
I. 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.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition but adds a non­
exhaustive list of fields of endeavor. In addition , the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation : 
( I) 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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Chertoff, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized in Defensor, 201 F.3d at 387-88, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
ascertain the minimum educational requirements necessary to perform those duties. In other words, 
as the beneficiaries in that case would provide services to the end-client hospitals and not to the 
petitioning staffing company, the petitioner-provided job duties and alleged requirements to perform 
those duties were insufficient for a specialty occupation determination. See id. 
II. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the record does not sufficiently establish that the proffered position reqmres an 
educational background, or its equivalent, commensurate with a specialty occupation. 1 
The Petitioner seeks to assign the Beneficiary to an end-client as a "software developer" for the 
duration of the validity period requested. The Petitioner submitted a labor condition application 
(LCA)2 for the end-client location for the "Software Developers, Applications" occupational category 
corresponding to the Standard Occupational Classification (SOC) code 15-1132, with a level II wage. 
1 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
2 A petitioner submits the LCA to U.S. Department of Labor (DOL) to demonstrate that it will pay an H-1 B worker the 
higher of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid 
by the employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 
C.F.R. § 655.73l(a). 
2 
To begin with, the Petitioner has presented inconsistent evidence regarding the terms and conditions of 
the Beneficiary's proposed end-client work assignment. The Petitioner asserts that the Beneficiary will 
be assigned to the end-client through contractual arrangements and provided an LCA indicating that 
the Beneficiary would be solely employed on a full-time basis at the end-client's work location. The 
Petitioner provided contractual documentation to illustrate this relationship. However, it has not 
established definitive, non-speculative, specialty occupation employment for the Beneficiary. 
To evidence the contractual relationships the Petitioner initially presented a partial copy of its June 
2003 agreement with the end-client, which indicates among other things, that the "[the Petitioner] will 
provide the services of one or more [consultants] to perform [ c ]onsulting [ s ]ervices agreed upon by 
the parties from time pursuant to a [c]onsulting [s]chedule," and notes that the "specific terms and 
conditions of each consulting engagement, and the services of each [ c ]onsultant shall be set forth in a 
[c]onsulting [s]chedule." Notably, the Petitioner omitted page two of the five-page agreement, which 
contains the conclusion of section three (which covers the term of the agreement), and all of sections 
four through nine of the agreement. We conclude the Petitioner's submission of just select sections 
of the end-client agreement diminishes its evidentiary value, as it deprives us of the remaining portions 
that may reveal information either advantageous or detrimental to the petitioning organization's 
claims, and therefore, is of little probative value. It is the Petitioner's burden to prove by a 
preponderance of evidence that it is qualified for the benefit sought. Matter of Chawathe, 25 I&N 
Dec. at 376. In evaluating the evidence, eligibility is to be determined not by the quantity of evidence 
alone but by its quality. Id. 
The Director requested copies of the contractual documentation between the parties for the 
Beneficiary's employment at the end-client location in her RFE, to include the statements of work, 
work orders, or service agreements specific to the Beneficiary's placement with the end-client. In 
response, the Petitioner provided a consulting schedule which identified the Petitioner and Beneficiary 
and noted that the Beneficiary will provide services as a "python developer" commencing in August 
of 2018. The document did not specify the duration of the assignment, the project that required the 
services of the consultant, the end-client requirements for the position, or a description of the duties 
that the python developer will perform. Notably, the consulting schedule indicates that the end-client 
will pay the Petitioner "$0" per billable hour for work performed by the Beneficiary. The Petitioner 
resubmits this contract schedule on appeal, indicating that the document is "a proper work order issued 
in the name of [the Beneficiary]." The Petitioner, which is a for-profit software development and 
consulting firm, does not clarify why it would place the Beneficiary with an end-client who has no 
obligation to compensate the Petitioner for the Beneficiary's services, even though the Petitioner is to 
pay the Beneficiary $75,000 on a yearly basis for the provision of services to the end-client according 
to the petition and the supporting LCA. The Petitioner must resolve this inconsistency and ambiguity 
in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
Additionally, the Petitioner has presented other inconsistent evidence regarding the Beneficiary's 
proposed employment with the end-client pursuant to this contract schedule. The Petitioner most 
recently employed the Beneficiary through STEM-related post-completion optional practical training 
and has provided copies of wage statements for his employment with the Petitioner. 3 However, the 
3 See 8 C.F.R. §§ 274.a.12(c)(3)(i)(C). 214.2(t)(IO)(ii)(C). 
3 
submitted material indicates that the Beneficiary commenced his employment with the Petitioner in 
January of 2019. The Beneficiary appears to have been employed by a different company prior to that 
date. For instance, the Petitioner's January 29, 2019 employment offer letter states that the Beneficiary 
will commence employment with the Petitioner on January 30, 2019. The Petitioner's payroll 
documentation shows that he started receiving wage income from the Petitioner during the pay period 
beginning January 20, 2019. The Petitioner submitted copies of the Beneficiary's wage statements 
from his previous employer, C-S-, which reflect that this other company paid $4,762 in wages to the 
Beneficiary during the month of January 2019. The Beneficiary's 2018 Internal Revenue Service 
(IRS) Form W-2 was similarly issued to the Beneficiary by C-S-, not the Petitioner. Additionally, the 
Beneficiary's March 2019 Immigration and Customs Enforcement (ICE) Form I-20 indicates that the 
Beneficiary was employed by C-S- from August 1, 2018 through January 29, 2019 and commenced 
employment with the Petitioner on January 30, 2019. 
Here on appeal, the Petitioner resubmits the end-client's August 2018 consulting schedule and asserts 
that the Beneficiary will be assigned to work as its employee by virtue of this contractual arrangement 
with the end-client. However, the inconsistent evidence in the record regarding who actually 
employed the Beneficiary in August 2018 casts substantial doubt on the Petitioner's assertions. The 
record lacks any explanation for these inconsistencies. Thus, we must also question the veracity of 
the other documents provided to detail this contractual arrangement, and whether the information 
provided by the Petitioner accurately describes the contractual relationship that will form the basis of 
the Beneficiary's proposed employment with the end-client. 4 
We note that the misrepresentation of a material fact may lead to multiple consequences in 
immigration proceedings. First, as an evidentiary matter, the misrepresentation may impact the review 
and adjudication of the visa petition or immigration application. Ifwe do not believe that a fact stated 
in the petition is true, we may reject that assertion. See section 214(c)(l) of the Act, 8 U.S.C. § 
1184(c)(l); cf Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Anetekhai v. INS, 876 
F.2d 1218, 1220 (5th Cir. 1989). The Petitioner's submission of false statements may also call into 
question the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Next, a material misrepresentation 
that is determined to have been willful under section 212(a)(6)(C) of the Act may make an individual 
ineligible to receive a visa and ineligible to be admitted to the United States. See, e.g., Forbes v. INS, 
48 F.3d 439, 442 (9th Cir. 1995). Finally, a finding of willful, material misrepresentation may lead to 
criminal penalties. See 18 U.S.C. §§ 1001, 1546; see also United States v. O'Connor, 158 F. Supp.2d 
697 (E.D. Va. 2001). 
In summary, while the partial end-client agreement suggests that the Petitioner and the end-client may 
share a contractual relationship, the Petitioner's submission of a partial copy of the end-client's service 
agreement and the incredible underlying consulting schedule does not substantiate the nature of the 
service agreements between the end-client and the Petitioner sufficiently to establish the critical details 
regarding the Beneficiary's proposed employment that the parties may have agreed to. The Director 
denied the petition, in part, concluding the petition lacked sufficient probative evidence to substantiate 
the Beneficiary's on-going end-client work assignment. We agree. The lack of complete and credible 
contractual documentation specific to the Beneficiary's employment is important because, in this case, 
4 Matter of Ho, Dec. at 591-92. 
4 
the existence of the proffered position appears dependent entirely upon the willingness of the end­
client to provide it. Here, the record lacks sufficient evidence of any legal obligation on the part of 
the end-client to provide the position described by the Petitioner in this petition. 5 
While relevant, the letters from the end-client are not sufficient to fill this gap, as they do not 
sufficiently describe the contractual relationship between the parties such that we can ascertain the 
nature and terms of that relationship and determine whether there is, in fact, a legal obligation on the 
part of the end-client to provide the position the Petitioner describes. For instance, the end-client's 
letters state: 
[The end-client] and [the Petitioner] have entered into a Master Service Agreement 
(MSA) that is valid until it is terminated by either [ the end-client] or [ the Petitioner]. 
[The parties] specify new service orders, extensions, and/or modifications via 
contractual vehicles, including, but not limited to, statements of work [SOWs]. Under 
this MSA, there are several active projects, so at any given time there may be 
simultaneously active projects under various SOWs and/or other instruments. In this 
instance, we understand that [ the Petitioner] has assigned its employee, [ the 
Beneficiary], to support an assignment pursuant to our MSA, and that he will perform 
his Liob duties at our office location]. 
The end-client indicates that the Petitioner's service work will be arranged for under contractual 
vehicles, such as service orders or SOWs. Though requested by the Director in her RFE, the Petitioner 
has not submitted such documents other than the aforementioned August 2018 consulting schedule, 
which appears to have been issued months prior to the Beneficiary's employment with the Petitioner 
and presents insufficient information regarding the terms and conditions of the assignment therein. 6 
Again, the record lacks evidence of any legal obligation on the part of the end-client to provide the 
position to the Beneficiary as described by the Petitioner in this petition, let alone determine its 
substantive nature to ascertain whether it is a specialty occupation. If we cannot determine whether 
the proffered position as described will actually exist, then we cannot ascertain its substantive nature 
so as to determine whether it is a specialty occupation. 7 Nonetheless, even if we were to set these 
foundational deficiencies aside, we would still be unable to ascertain the substantive nature of the 
proffered position. 
A crucial aspect of this matter is whether the duties of the proffered position are described in such a 
way that we may discern the actual, substantive nature of the position. As noted, the record lacks 
sufficient evidence to substantiate the Beneficiary's assignment as represented by the Petitioner. 
Again, when a beneficiary will perform the work for entities other than the petitioner, evidence of the 
client companies' job requirements is critical. Defensor, 201 F.3d at 387-88. When determining 
5 Cf Galaxy Software Solutions, Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
6 "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). 
7 The agency made clear long ago that speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
5 
whether a position is a specialty occupation, we look at the nature of the business offering the 
employment and the description of the specific duties of the position as it relates to the performance 
of those duties within the context of that particular employer's business operations. 
We conclude the Petitioner has not presented evidence sufficient to demonstrate what the end-client's 
project actually entails that requires the Beneficiary's services. The contractual documentation presented 
in the record does not identify what the end-client's project is, the staffing needed to complete the project, 
or the date and duration of the project. The letters submitted in support of the petition also provide little 
information regarding the Beneficiary's end-client project assignment. For instance, the end-client's 
letter provided on appeal indicates "[the Beneficiary] will perform his job duties [at the end-client 
location]; we forecast that such service support will continue through [August 2022]." The end-client 
identifies two projects that the Beneficiary will be working on, the '~----------~ 
I I" project and the "I t' project but does not describe what 
these projects entail. We also acknowledge that the Petitioner provides what appears to be a general 
presentation aboutl I However, this material does not describe the end-client's project in a 
manner that illustrates the project's scope and magnitude, staffing hierarchy and the relative roles, 
responsibilities, and duties of the information technology staff that will be devoted to the project, 
including those for the Beneficiary's work assignment. 
The Petitioner has also provided evidence about the Beneficiary's end-client organizational hierarchy 
which shows that he is employed as an "IT Advanced Analytics Analyst II" in the end-client's "Tech­
BI & Advanced Analytics" department. Therein he reports to the end-client's "Mgr - IT Advanced 
Analytics." Notably, neither the end-client nor the Petitioner discuss the Beneficiary's role as an "IT 
Advanced Analytics Analyst II" within their letters. It is not apparent whether this alternative role is the 
same or similar to the "python developer" and "software developer" positions identified elsewhere in the 
petition, which presents additional questions about the substantive nature of the proffered position. 8 
The Petitioner submits its own listings of job duties that the Beneficiary will perform in the proffered 
position. For instance, the Petitioner offered a numbered list of 10 job functions with the percentage 
of time devoted to each job function,9 as follows: 10 
1. Technical Specifications (5%); 
2. Business Understanding and Data acquisition (15%); 
3. Model planning, Building, and Fitting (15%); 
4. Model Performance and Evaluation (10%); 
8 Matter of Ho, Dec. at 591-92. 
9 The time percentages for these job functions add up to 95% of the Beneficiary's time. The Petitioner does not indicate 
what he will be tasked with for the remaining 5% of the time. Id. 
10 We acknowledge that the Petitioner submitted information for the job duties, which, for the sake of brevity, have not 
been included herein. However, this material has been closely reviewed and considered, as with all evidence in the record. 
For instance, the Petitioner discussed the Beneficiary's academic credentials for the purpose of correlating the need for the 
Beneficiary's education with the associated job duties of the position. However, we are required to follow long-standing 
legal standards and determine first, whether the proffered position qualifies for classification as a specialty occupation, 
and second, whether the Beneficiary was qualified for the position at the time the nonimmigrant visa petition was filed. Cf 
Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988) ('The facts of a beneficiary's background only 
come at issue after it is found that the position in which the petitioner intends to employ him falls within [ a specialty 
occupation]."). 
6 
5. Communicate results with Manager and Business team (10%); 
6. Define configurations and System integration (15%); 
7. Develop code for automation and Benchmarking testing (10%); 
8. Monitor end to end build process (5%); 
9. Support for the developed applications (5%), and; 
10. System monitoring and scheduling using CA WA workload automation (5%). 
Within the same submission it offered a differing numbered list of 9 job functions with the percentage 
of time devoted to each job function, as follows: 
1. Technical Specifications (15%); 
2. Business Understanding and Data acquisition (10%); 
3. Model planning, Building, and Fitting (10%); 
4. Workflow procedure, Code Development, and Deployments (20%); 
5. Develop code for automation and Benchmarking testing (15%); 
6. Define configurations, System integration, and Customer Management (10%); 
7. Communicate results with Manager and Business team (10%); 
8. Support for the developed applications (5%); 
9. System monitoring and model Performance and scheduling usmg CA-WA 
workload automation (5%); 
The Petitioner's varying statements do not convey sufficient pertinent details as to the actual work and 
level of responsibility involved in these tasks. Rather, the Petitioner's job duty listing identifies job 
tasks that are typically performed by individuals working within information technology development 
projects. Consequently, they do not give context to the specific tasks that the Beneficiary will perform 
within the end-client's business operations. The Director specifically requested such evidence in her 
RFE, but the Petitioner did not provide sufficient evidence to show how the Beneficiary's specific job 
duties relate to the end-client's products and services. 11 
We must review the actual duties the Beneficiary will be expected to perform to ascertain whether 
those duties require at least a baccalaureate degree in a specific specialty, or its equivalent, as required 
for classification as a specialty occupation. To accomplish that task in this matter, we review the 
duties in conjunction with the specific project(s) to which the Beneficiary will be assigned. To allow 
otherwise, results in generic descriptions of duties that, while they may appear (in some instances) to 
comprise the duties of a specialty occupation, are not related to any actual services the Beneficiary is 
expected to provide. 
The end-client quotes verbatim the Petitioner's job duty listings within its own letters, yet we are unable 
to determine from the record the original source of the proposed duties within the Petitioner and end­
client letters. However, it remains the Petitioner's burden to demonstrate the duties relate to the actual 
work the Beneficiary will perform at the end client worksite. The Petitioner must also establish the 
duties are the requirements actually imposed by the entity using the Beneficiary's services. Defensor, 
201 F.3d at 387-88. Here, the Petitioner has not offered sufficiently probative evidence in this matter. 
11 See 8 C.F.R. § 103.2(b)(14). 
7 
We therefore determine that the generally stated duties provided by the Petitioner without the context of 
specific end-client project work and the Beneficiary's actual role in the project adds little to our 
understanding of the substantive nature of the Beneficiary's duties. While the Petitioner's job 
descriptions identify information technology job functions, without more, they do not support the 
Petitioner's assertions regarding the relative complexity and specialization of the Beneficiary's day­
to-day duties. For instance, the Petitioner's job descriptions identify tasks, such as "created responsive 
web pages using HTML, CSS, Bootstrap, and XML/JSON," "use A WS S3 buckets for storing massive 
amount of data for the fastest of retrieval," "[ w ]orking on Agile-Scrum Methodology where every 
alternate day we have a scrum meeting," and "responsible for defect analysis, prioritization, and fixing 
defects," but they do not provide sufficient detail regarding how these tasks merit recognition of the 
proffered position as a specialty occupation. The duties as described by the Petitioner do not 
sufficiently communicate (1) the actual work that the Beneficiary would perform, (2) the complexity, 
uniqueness, or specialization of the tasks, and (3) the correlation between that work and a need for a 
particular level education of highly specialized knowledge in a specific specialty. 
The Petitioner also submitted an opinion letter authored by Professor C. In his letter, the professor (1) 
describes the credentials that he asserts qualify him to opine upon the nature of the proffered position; 
(2) quotes in full one of the listings of duties proposed for the Beneficiary within the Petitioner's RFE 
response; and (3) states that these duties require at least a bachelor's degree or higher in computer 
science, a related field, or the equivalent. We carefully evaluated the professor's assertions in support 
of the instant petition but find them insufficient. In his letter, the professor states that his assessment 
is based upon his "review [ of] the letter submitted with the H-1 B petition by [ the Petitioner], and the 
job description of the Software Developer position it now seeks to fill." While the professor provides 
a brief: general description of the Petitioner's business activities, he does not demonstrate in-depth 
knowledge of its operations or how the duties of the position would actually be performed in the 
context of the end-client's business enterprise. For instance, the professor concludes "the duties 
described above are not those of a lower-level employee performing tasks such as those duties 
performed by a Technologist or an IT-support employee, but rather those of a professional employee 
with a strong background in computer science concepts and principles and a great level of 
responsibility within the company." The professor does not reference or discuss the specifics of the 
particular projects or initiatives upon which the Beneficiary will work on at the end-client location. 
While we appreciate his discussion of several of the job duties provided by the Petitioner, his analyses 
still falls short of providing a meaningful discussion of what the Beneficiary will actually do in the 
proffered position and how those duties require the theoretical and practical application of a body of 
highly specialized knowledge. As a result, we conclude that the Petitioner has not demonstrated that 
the professor possessed the requisite information to adequately assess the nature of the position and 
appropriately determine whether a degree in a specific specialty is required for the position based upon 
the position's actual job duties and level of responsibilities. 
We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of 
Caron Int'!, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, where an opinion is not in accord 
with other information or is in any way questionable, we are not required to accept or may give less 
weight to that evidence. Id. Consistent with Caron Int 'l, we find that this evaluation does not satisfy 
8 C.F.R. § 214.2(h)(4)(iii)(A) and, for the sake of brevity, we will not address other deficiencies within 
his analyses of the proffered position. 
8 
Upon review of the totality of the record, we determine it is insufficient to establish the substantive 
nature of the work to be performed by the Beneficiary, which therefore precludes a conclusion 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. 12 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. The Petitioner 
has not met that burden here, and the petition will remain denied. 
ORDER: The appeal is dismissed. 
12 As the lack of probative and consistent evidence in the record precludes a conclusion that the proffered position is a 
specialty occupation and is dispositive of the appeal, we will not further discuss the Petitioner's assertions on appeal. 
9