dismissed H-1B Case: Software Development

(b)(6)
DATE: FEB 0 6 2015 
IN RE: Petitio ner: 
Beneficiary: 
OFFICE: CALIFORNIA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Cir.izenship and fmmigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washin!!.ton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Sectio n 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new construct ions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
po licy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
�� 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The service center director denied the nonimmigrant visa petition, and the matter is 
now on appeal before the Administrative Appeals Office. The appeal will be dismissed. The 
petition will be denied. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
29-employee "S oftware Development & Consulting" business established in In order to 
employ the beneficiary in what it designates as a full-time "Programmer Analyst" position at a 
salary of $60,000 per year, the petitioner seeks to classify her as a nonimmigrant worker in a 
specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record does not demonstrate that 
the position proffered qualifies as a specialty occupation. 
On appeal, counsel for the petitioner asserts that the director's basis for denial was erroneous and 
contends that the petitioner satisfied the evidentiary requirements. 
The record of proceeding contains the following: (1) the Form I -12 9 and supporting documentation; 
(2) the director's request for additional evidence (RFE); (3) the petitioner's response to the RFE; 
(4) the director's letter denying the petition; and (5) the Form I-290B, Notice of Appeal or Motion, 
and supporting documentation. We have reviewed the record in its entirety before issuing our 
decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not 
demonstrate that the position proffered qualifies as a specialty occupation. Beyond the director's 
decision, we have identified two additional grounds for denial, i.e., that the petitioner failed to 
establish: (1) that it qualifies as a United States employer that has and will maintain an employer­
employee relationship with the beneficiary throughout the entire validity period requested; and (2) 
that the beneficiary is qualified to perform the duties of the proffered position. For these reasons, the 
appeal will be dismissed, and the petition will be denied. 
I. FACTUAL AND PROCEDURAL HISTORY 
The petitioner filed the Form I-129 on April 1, 20 14, listing its business address as 
The petitioner indicated on the Form I-12 9 that it 
seeks to employ the beneficiary as a "Programmer Analyst" at the petitioner's business address 
above, as well as the address of The petitioner 
further indicated that it will submit an itinerary with the petition, and that the beneficiary will work 
off-site. The petitioner listed the dates of the beneficiary's intended employment as October 1, 20 14 
through September 6, 2017. 
The Labor Condition Application (LCA) submitted to support the visa petition states that the 
proffered position is a Programmer Analyst, and that it corresponds to Standard Occupational 
Classification (SOC) code and title "15-1131, Computer Programmers" from the Occupational 
Information Network (O*NET). The LCA states that the proffered position is a Level I, entry-level, 
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position. The LCA listed the places of the beneficiary's employment as 
In support of the petition, the petitioner submitted a letter, dated March 17, 2014, explaining the 
duties of the proffered position. Specifically, the petitioner states that the beneficiary will 
"[analyze] the data processing requirements to determine the computer software which will best 
serve [clients'] needs," "design a computer system using that software," "implement that design by 
overseeing the installation of the necessary system software and its customization to our company's 
unique requirements," and then "constantly revise and revamp the system as it is being created to 
respond to unanticipated software anomalies." The petitioner further states that "[t]he actual 
computer programming may be performed with the assistance of the programmers." 
In the same letter, the petitioner states that the beneficiary "will be involved in the designing and 
development" of an unspecified "application." The petitioner states that the "development" of the 
unspecified "systems" will include the following "phases: " 
1. Analysis of the existing system and user needs; 
2. Communication and interaction with current system users; 
3. Design and development of a new computerized system; 
4. Writing and testing of newly designed programs; 
5. Implementation of the newly developed system; 
6. Provide technical support after system implementation 
The petitioner proceeded to provide the following breakdown of the "D ay-to-Day Responsibilities" 
of the proffered position and the percentage of time allotted to each duty: 
1. Analysis of software requirements (25% ); 
2. Evaluation of interface feasibility between hardware and software (10% ); 
3. Software system design (using scientific analysis and mathematical models to predict 
and measure design consequence and outcome (30% ); 
4. Unit and integration testing (25 %); 
5. System installation (5%); 
6. Systems maintenance (5%) 
The petitioner then listed the following "Specific Duties" for the proffered position: 
1. Design and implement all QA test strategy plans and automate test solutions for 
client/server and web applications with mercury interactive test suite ( 
2. Perform load test, stress test, benchmark profile test, fail-over test, fail-back test 
against supported configurations. 
3. Responsible for loading test oracle application. 
4. Handle complex view state and event validation for .net based applications. 
5. Verify the connectivity from controller to the load controller and utilize the IP 
address of load generator to add them to the controller. 
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6. Trace deadlock and expensive and test procedures (MS SQL Profile, Oracle 
Performance manager). 
7. Create test suite and test cases to validate web service using SOAPUI. 
8. Using descriptive programming to handle dynamic object using VBScript. 
9. Responsible for developing baseline scenarios and load testing harnesses for 
load/performance testing of the application. 
10. Generate predefined reports SLA reports, SLA outage reports. 
11. Responsible for performance monitoring and analysis of response time & memory 
leaks using throughput graphs. 
12. Develop and enhance script using l and design scenarios using 
performance center to generate realistic load on the application under test. 
13. Trace Java methods and database queries execution using J2EE diagnostic tool _ 
14. Develop performance test plan as well as develop details performance analysis report, 
graphs (include build on graphs and MS Excel-custom graphs). 
15. Conduct load test for multiple using user 
16. Use monitors to identify bottlenecks. 
17. Setup Issue management task, risk assessment and measure operational impact. 
18. Update project plan, status report and maintain issue log. 
19. Prepare program specs, execute testing and prepare implementation plan. 
20. Develop processed, controls and record keeping data collection and analysis. 
[Verbatim.] 
As to the minimum educational requirement of the proffered position, the petitioner states that the 
"minimum educational qualifications for this position are a Bachelor 's degree in Computer Science, 
Engineering, Mathematics, Business, a related analytic or scientific discipline, or its equivalent in 
education or work-related experience." 
The petitioner further states that the beneficiary is an "excellent candidate" for the proffered position 
by virtue of her academic background and training. The petitioner highlights the beneficiary's 
Master of Construction Engineering Management Degree from 
Michigan, her Bachelor of Architecture Degree from 
India, and her "related experience within the computing field." The petitioner states that the 
beneficiary's background "uniquely qualify him [sic] to assume this position within a 
business/logistics computing environment, functioning at a professional level II, assessing business 
and systems needs and implementing same," and "will enable him [sic] to assist our company in 
better assessing clients' needs, based on a complete understanding of business ramifications of 
systems changes and their effects." 
In support of the petition, the petitioner submitted, inter alia, an itinerary. The itinerary indicates 
that the beneficiary will first be assigned to work for the end-client 
( at the address of 
New York. The dates of this particular assignment are listed as "From 10/01/2014 & Extendable 
beyond 20 16." The itinerary indicates that the beneficiary will subsequently be assigned to work 
(b)(6)
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for the petitioner at its business premises at _ 
NON-PRECEDENT DECISION 
Illinois for the "[r]est of the period of H-lB Approval." Only one project, vaguely described as 
"Information technology services," is listed on the itinerary; no other information about this 
"project" is provided. At the bottom the itinerary states, in pertinent part: "Upon completion of this 
project the beneficiary will be assigned to one of the other on-going projects undertaken by the 
company on behalf of our clientele." No further information was provided explaining what projects 
and clientele to which the beneficiary will be assigned. 
The petitioner submitted a letter, dated March 17, 2014, from the CEO of 
describing its company as "an Analytics customized Product development company based in ' The letter verifies that the beneficiary "has been selected to work for _ 
as an IT contractor." The letter states that it has "a need of [sic] [the 
beneficiary's] services for about 12 months with possible extensions." The letter then lists the 
following responsibilities to be performed by the beneficiary: 
• Identifying user requirements and performing research and analysis to determine 
conceptual design for solving business problems. 
• Develop scripts for Data Creation. 
• Simulate multiple Vuser scenarios. Defined Rendezvous point to create intense load 
on the server and thereby measure the server performance under load. 
• Verify the connectivity from Controller to the Load Generator. Utilized the IP 
address of Load Generators to add them to the Controller. 
• Usage of different checkpoints for evaluation of test scripts and develop reusable 
actions. 
• Extensive usage of for storage and maintenance of requirements, tests, 
test cases, defects and scheduling automation of test cases. 
• Develop and implement test and unit validations. 
• Maintain security, integration and system level testing. 
• Fine tune the application design to meet the client needs as best as possible. 
The petitioner submitted a Profession al Services Agreement (PSA), dated March 17, 2014 , between 
and the petitioner. The PSA states, in pertinent part, that 
desires to "engage the services of [the petitionerl to assist in design, development and testing of it 
[sic] cloud based advanced analytics product, ' and that the job duties require the 
petitioner to "periodically present a candidate to provide services to as a consultant (the 
'Candidate'), as described more specifically in Exhibit A, incorporated into and made a part of this 
Agreement." The PSA states that the services shall commence "pursuant to a Work Order in the 
form of Exhibits (as defined in Exhibit A)." 
The Exhibit A accompanying the PSA is entitled "Contract to Hire Agreement. " This document 
identifies the "C andidate" as the beneficiary, and the "Scope of Work" as "QA Testing. " The start 
date is listed as "10/01/2014 (Tentatively)" and the end date is listed as "09/30/2015 (Extendable)." 
The job duties are identical to those listed in the letter dated March 17, 20 14 from the CEO of 
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The petitioner submitted a screen-shot from the website of 
the website states: 
Under "Events, " 
-
This announcement is dated February 6, 20 14. 
Regarding the beneficiary's educational qualifications, the petitioner submitted copies of her: (1) 
Master of Construction Engineering Management degree from 
(2) transcript from (3) Provisional Certificate of a Bachelor's 
Degree in Architecture from the India; and (3) 
transcript from 
The director issued an RFE instructing the petitioner to submit, inter alia, additional evidence 
establishing that the proffered position qualifies as a specialty occupation. 
In response, the petitioner submitted a letter, dated June 6, 20 14, listing the same job duties for the 
proffered position as provided in its earlier letter. The petitioner then states: "It is not possible for 
us to provide an actual and correct breakdown of the exact amount of time the alien will be 
spending in performing the job duties. However, the alien will spend approximately 85 to 90% of 
her time in performing the listed job duties depending on the project she is working." 
As to the minimum educational requirement for the proffered position, the petitioner states that "the 
complex nature of the job duties [] requires an individual to have at least a Bachelor's Degree in 
computers or computer related field of study." Later on in the same letter, the petitioner states that 
it "accepts qualified individuals with a Bachelor's degree in computer science, engineering, or other 
related field for the position of Programmer Analyst." The petitioner further states: 
We normally require candidates for these positions to possess a Bachelor's degree or 
its equivalent in Computer Science, Engineering, Business, Math, Science, 
Technology, MIS, CIS, Finance, Economics, a related analytic or scientific discipline, 
or the equivalent thereof, as well as working experience in the field. [We J do not 
limit the educational requirement for these positions to computer science only. 
* * * 
The attached documents will satisfy the Service that it is absolutely customary in the 
computer consulting industry to hire individuals who possess a broad variety of 
Bachelor degrees from technical disciplines (i.e. Computer Science, Engineering, 
CIS, MIS, Mathematics, Technology, and others) because the analysis, logic, 
mathematics, and computational courses completed are directly applicable to the 
work performed. This includes the discipline of Production, Mechanical, 
Manufacturing, Metallurgical, Electrical, Electronics, or Civil Engineering. 
In support of its RFE response, the petitioner submitted, inter alia, an "Expert Opinion Evaluation" 
from Dr. I'rofessor of Computer Science at 
states, in pertinent part, that "[t]his letter will also analyze the 
requirements for the position of System Analyst and prove that a bachelor's degree in a Computer 
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Related field is absolutely essential for this position." Furthermore, Dr. states that he has 
reviewed the job duties for the proffered position, and concludes that the job duties indicate that the 
proffered position is comparable to a Quality Assurance position. Specifically, Dr. states 
that "[w]hile the position title is 'Programmer Analyst' it is important to note that this field is very 
broad and encompasses many different subareas. A central one, and the one specified by the 
requirements above, is that of Quality Assurance." Dr. further goes on to describe the job 
duties of Quality Assurance analysts, and to describe the minimum educational requirement for 
"Software Programmer Analysts [who] do Quality Assurance testing for their companies." 
The petitioner also submitted documentation pertaining to individuals whom the petitioner claims to 
employ in "the position of Programmer Analyst and/or similar occupations." Specifically, the 
petitioner submitted, among other documentation, copies of these individuals' diplomas. The 
diplomas reflect that these individuals possess degrees in a variety of fields, including Commerce, 
Business Administration, and Mechanical Engineering. 
The director denied the petition, concluding that the evidence of record does not demonstrate that 
the position proffered qualifies as a specialty occupation. 
On appeal, counsel for the petitioner asserts that the director's basis for denial was erroneous. In 
support of the appeal, the petitioner submits, inter alia, copies of the job descriptions for its other 
employees previously referenced in response to the RFE. In all of the submitted job descriptions, 
the petitioner listed the exact same "Phase Description[s]" and "Da y-to-Day Responsibilities" as 
those provided for the proffered position. While the "Phase Description[s]" and "Day-to-Day 
Responsibilities" are identical; however, each employee's "Specific Duties" are different. 
II . STANDARD OF PROOF 
As a preliminary matter and in light of counsel's references to the requirement that U.S. Citizenship 
and Immigration Services (USCIS) apply the "preponderance of the evidence" standard, we affirm 
that, in the exercise of our appellate review in this matter, as in all matters that come within our 
purview, we follow the preponderance of the evidence standard as specified in the controlling 
precedent decision, Matter ofChawathe, 2 5 I&N Dec. 369, 375-376 (AAO 2010). In pertinent part, 
that decision states the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
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!d. 
NON-PRECEDENT DECISION 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 42 1, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004). In doing so, we apply the preponderance of the evidence standard as outlined in Matter of 
Chawathe. Upon our review of the present matter pursuant to that standard, however, we find that 
the evidence in the record of proceeding does not support counsel's contentions that the evidence of 
record merits the approval of the petition. Upon our review of the entire record of proceeding, and 
with close attention and due regard to all of the evidence, separately and in the aggregate, submitted 
in support of this petition, we find that the petitioner has not established that its claims are "more 
likely than not" or "probably" true. As the evidentiary analysis of this decision will reflect, the 
petitioner has not submitted relevant, probative, and credible evidence that leads us to believe that 
the petitioner's claims are "more likely than not" or "probably" true. 
III. MATERIAL FINDINGS 
As a preliminary matter, we find that the petitioner has failed to establish the substantive nature of 
the proffered position. 
The petitioner has presented conflicting descriptions of the proffered position and its constituent job 
duties. On one hand, the LCA submitted to support the instant petition was certified for a position 
falling under the "Computer Programmers" occupational classification. The petitioner describes 
some duties for the proffered position that are reasonably consistent with the "Computer 
Programmers " occupational classification, such as analyzing clients' software needs and designing 
1 
computer systems to meet those needs. 
1 Specifically, O*NET states that positions falling within the "Computer Programmer" occupational 
classification "[m]ay assist software developers by analyzing user needs and designing software solutions." 
O*NET further lists duties such as "[c]onsult with managerial, engineering, and technical personnel to clarify 
program intent, identify problems, and suggest changes," and "[p]erform systems analysis and programming 
tasks to maintain and control the use of computer systems software as a systems programmer." Id. at: 
http://www.onetonline.orgllink/summary/15-1131. 00 (last visited Jan. 29, 2015). 
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On the other hand, the petitioner has also presented evidence indicating that the proffered position 
will primarily involve quality assurance (QA) testing duties, and as such, is better classified under 
the O*NET code and title 15-1199.01, Software Quality Assurance Engineers and Testers, 
occupational classification.2 
In particular, the petitioner's "Specific Duties" for the proffered position are primarily comprised of 
QA testing duties such as: "[ d]esign and implement all QA test strategy plans and automate test 
solutions for client/server and web applications with mercury interactive test suite ( 
; "[p ]erform load test, stress test, benchmark profile test, fail­
over test, fail-back test against supported configurations"; " [ c ]reate test suite and test cases to 
validate web service"; " [ r ]esponsible for developing baseline scenarios and load testing harnesses 
for load/performance testing of the application"; " [ d] evelop and enhance script using 
and design scenarios using performance center to generate realistic load on the application under 
test"; and "[d]evelop performance test plan.". Notably, the "Specific Duties" the petitioner listed for 
the proffered position do not include any programming duties.3 
In addition, the documentation from the only identified end-client, indicates 
that the beneficiary will primarily be performing quality assurance (QA) testing duties. Specifically, 
in the "Contract to Hire Agreement" between the end-client and the petitioner, the beneficiary's 
scope of work is described as "QA Testing." In the end-client's letter, the majority of the 
beneficiary's duties are QA testing duties, including " [ d]evelop scripts for Data 
Creation," "[s]imulate multiple Vuser scenarios ... [and] measure the server performance under 
load," "evaluation of test scripts and develop reusable actions," "[ e]xtensive usage of 
2 O*NET lists the job duties for "Software Quality Assurance Engineers and Testers " as including: design 
test plans, scenarios, scripts, or procedures; test system modifications to prepare for implementation; develop 
testing programs; document software defects; identify, analyze, and document problems with program 
function, output, online screen, or content; create or maintain databases of known test defects; plan test 
schedules or strategies in accordance with project scope or delivery dates; and review software 
documentation to ensure technical accuracy, compliance, or completeness, or to mitigate risks. /d. at 
http://www.onetonline.org/1ink/summary/1 5-1199.01 (last visited Jan. 29, 2015). 
3 In fact, it is unclear whether some of the petitioner's statements are even relevant to the beneficiary and the 
actual position being offered to her. For instance, the petitioner states that "[t]he actual computer 
programming may be performed with the assistance of the programmers. " It is unclear what this statement is 
intended to convey considering that the petitioner certified the proffered position as falling under the 
"Computer Programmers" occupational classification. Further, the petitioner states that the beneficiary's 
background "uniquely qualify him to assume this position within a business/logistics computing 
environment, functioning at a professional level II (emphasis added)." The beneficiary is a female, and the 
petitioner certified the proffered position as a Level I position. Moreover, the job descriptions the petitioner 
submitted in support of the H-lB petitions for several of its other employees reveal that the petitioner has 
provided identical statements with respect to each individual's duties, such as how each individual will be 
"involved in the designing and development" of computer systems, will be involved in identical "phases," 
and will perform identical "Day-to-Day Responsibilitie s" in the same percentages of time. These identical 
statements regarding the proffered duties are more problematic in light of the fact that the petitioner 
subsequently listed subst antially different "Specific Duties " for each individual. 
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for storage and maintenance of requirements, tests, test cases, defects and scheduling automation of 
test cases, " "[d]evelop and implement test and unit validations," and "[m]aintain ... system level 
testing." Again, we note that no specific programming duties are listed for the beneficiary. 
Furthermore, the petitioner submitted a letter from Dr. concluding that the duties of the 
proffered position are more reflective of a Quality Assurance position. Specifically, Dr. 
states that although the position title of "Programmer Analyst" is "very broad and encompasses 
many different subareas," the particular job duties of the proffered position indicate that the position 
falls within the "Quality Assurance" subarea. 
Based on the inconsistencies in the record, as described above, we find that the petitioner has not 
established the substantive nature ot' the proffered position, i.e., whether the proffered position is 
that of a computer programmer or Quality Assurance tester. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence; any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 58 2, 591-92 (BIA 1988). 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. Id. 
In addition to the above inconsistencies, we find that the petitioner has neither adequately explained 
nor submitted sufficient, credible evidence establishing what work the beneficiary will be assigned 
to during the entire validity period requested from October 1, 2014 through September 6, 2017. 
Here, the petitioner asserts that the beneficiary will first be assigned to work for the end-client 
located at The petitioner 
asserts that after this assignment, the beneficiary will work for the petitioner at its business premises 
at However, the petitioner has not 
provided sufficient explanation and documentation of the work to be performed at either place of 
employment. 
With respect to the beneficiary's claimed assignment to there are critical 
inconsistencies and deficiencies that undermine the validity of the petitioner's claims and submitted 
documentation. Here, we reiterate and incorporate our earlier discussion about the inconsistencies 
in the evidence indicating that the ben eficiary will be a QA tester, as opposed to the petitioner's 
classification of the proffered position as a programmer. Moreover, we find that the petitioner has 
not clearly articulated exactly what project the beneficiary would be assigned to for 
The itinerary submitted in support of the petition states only that the "project" the 
beneficiary will work on is "Information technology services." The itinerary does not provide a 
specific project name or description. Similarly, the petitioner's initial letter states vaguely that the 
beneficiary will be "involved in the designing and development" of an unspecified "a pplication" and 
"systems." The petitioner does not identify any project name, or any application and systems 
involved. 
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While the PSA between and the petitioner states that the petitioner was 
contracted to "assist in design, development and testing of cloud based 
advanced analytics product, '" the petitioner does not make any express mention 
of in its itinerary and other supporting documentation. Significantly, the record 
contains no objective evidence establishing the existence and development of the claimed '' 
" product. Furthermore, according to the screen-shot of website, its 
product had already been launched as of February 6, 2014 . Thus, it is unclear 
what role, if any, the petitioner- and consequently the beneficiary- would reasonably have in the 
"design, develoiJment and testing" of a product that has already been launched. We observe that 
is self -described as ' 
and thus, the general need for the petitioner's services are not readily apparent as well. 
There are also inconsistencies within the documentation from that raise 
sufficient doubt as to their validity and authenticity. For instance, the PSA between the petitioner 
and states that the beneficiary's services shall commence "pursuant to a Work 
Order in the form of Exhibits (as defined in Exhibit A)." However, the attached "Exhibit A" is not 
entitled a "Work Order," but a "Contract to Hire Agreement ." Further, the "Contract to Hire 
Agreement" lists the beneficiary's end date as "09/30/2015 (Extendable)," whereas the petitioner's 
itinerary lists the beneficiary's end date as "Extendable beyond 20 16." 
In addition to the unclear nature of the beneficiary's purported assignment to _ 
_ 
the evidence of record fails to establish what work the beneficiary would perform for the petitioner. 
As noted above, the itinerary states that after the beneficiary's assignment to 
"the beneficiary will be assigned to one of the other on-going projects undertaken by the company 
on behalf of our clientele." However, the petitioner does not further identify nor document what 
other "projects" and "clientele" the beneficiary would be assigned to service. The petitioner has not 
submitted any service agreements, work orders, or similar documentation establishing what work it 
will assign the beneficiary to perform at its business premises at 
or elsewhere. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm'r 1972)). 
Again, we highlight the vague language of the submitted itinerary, which identifies the only 
"project" as "Information technology services." We also highlight the petitioner's vague statement 
that it is "not possible for [the petitioner] to provide an actual and correct breakdown of the exact 
amount of time the alien will be spending in performing the job duties," as the duties will change 
"depending on the project she is working." Overall, the petitioner's failure to identify and document 
all of the projects, end-clients, and job duties it will assign to the beneficiary during the entire 
validity period requested precludes any meaningful understanding of the substantive nature of the 
proffered position. 
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IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
In addition to finding that the petitioner failed to establish the substantive nature of the proffered 
position, we find, beyond the decision of the director, that the petition must be denied due to the 
petitioner's failure to establish that it qualifies as a United States employer that will have and 
maintain an employer-employee relationship with the beneficiary throughout the entire validity 
period requested. 
As detailed above, the record of proceeding lacks sufficient documentation evidencing what exactly 
the beneficiary would do for the period of time requested or where exactly and for whom the 
beneficiary would be providing services. Given this specific lack of evidence, the petitioner has 
failed to establish who has or will have actual control over the beneficiary's work or duties, or the 
condition and scope of the beneficiary's services. In other words, the petitioner has failed to 
establish whether it has made a bona fide offer of employment to the beneficiary based on the 
evidence of record or that the petitioner, or any other company which it may represent, will have 
and maintain the requisite employer-employee relationship with the beneficiary for the duration of 
the requested employment period. See 8 C.F.R. § 214.2 (h)(4)(ii) (defining the term "United States 
employer" and requiring the petitioner to engage the beneficiary to work such that it will have and 
maintain an employer-employee relationship with respect to the sponsored H-lB nonimmigrant 
worker). 
We acknowledge the letter from stating that the petitioner "is the employer" of 
the beneficiary, that the petitioner "has the right to pay, hire, fire, supervise and otherwise control 
their employee," and that "[a]t all times, [the petitioner] has the right to control the work of [the 
beneficiary], regardless of whether that right is exercised, through the duration of [this] contract." 
We also acknowledge the petitioner's assertions that it will pay the beneficiary's salary and standard 
company benefits, and that her employment 11is not dependent upon a contractual agreement(s) with 
any of our clients firm [sic] ." However, such assertions, without more, are insufficient to establish 
that the petitioner will have and maintain an employer-employee relationship with the beneficiary. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
Furthermore, while salary and related benefits are relevant factors in determining who will control 
an alien ben e ficiar y, other incidents of the relationship, e.g., who will oversee and direct the work of 
the beneficiary, who will provide the instrumentalities and tools, where will the work be located, 
and who has the right or ability to affect the projects to which the alien beneficiary is assigned, must 
also be assessed and weighed in order to make a determination as to who will be the beneficiary's 
employer.4 Without full disclosure of all of the relevant factors, we are unable to properly assess 
4 The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 503 
U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Com munity for Creative Non-Violence v. Reid, 
490 U.S. 730 (1989)). The Supreme Court stated: 
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Page 13 
whether the requisite employer-employee relationship will exist between the petitioner and the 
beneficiary. 
Again and as previously discussed, there is insufficient evidence detailing the circumstances of the 
beneficiary's employment, such as what the beneficiary will do, the specific projects to be 
performed by the beneficiary, or for which clients the beneficiary will ultimately perform these 
services. The absence of such evidence precludes the finding that the petitioner qualifies as a 
United States employer with the requisite employer-employee relationship with the beneficiary 
throughout the entire validity period requested. The appeal must be dismissed and the petition must 
be denied for this reason. 
V. SPECIALTY OCCUPATION 
Based on the petitioner's failure to establish the substantive nature of the proffered position, the 
petition must also be denied for failure to establish that the proffered position qualifies as a 
specialty occupation. 
To meet its burden of proof in establishing the proffered position as a specialty occupation, the 
petitioner must establish that the employment it is offering to the beneficiary meets the following 
statutory and regulatory requirements. 
Section 21 4(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1184(i)(l) defines 
the term "specialty occupation" as one that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accompli she d. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumenta lities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party." 
Darden, 503 U.S. at 323-324 (quoting Commun ity· for Creative Non-Violence v. Reid, 490 U.S. at 751-752); 
see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) (hereinafter 
"Clackamas"). As the common-law test contains "no shorthand formula or magic phrase that can be applied 
to find the answer, .. . all of the incidents of the relationship must be assessed and weighed with no one 
factor being decisive." Darden, 503 U.S. at 324 (quotingNLRB v. United Ins. Co. of America, 390 U.S. 254, 
258 (1968)). 
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NON-PRECEDENT DECISION 
(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 term "specialty occupation" is further defined at 8 C.F.R . § 21 4.2(h)(4)(ii) as: 
An occupation which requires [(1)] 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 requires [(2)] 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.P. R. § 214.2(h)( 4)(iii)(A), to qualify as a specialty occupation, the position must 
also 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 of 
language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Federal 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. § 21 4.2(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, 20 1 F. 3d 384, 387 (5th Cir. 2000). To avoid 
this result, 8 C . P. R. § 21 4.2(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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Page 15 
Here, and as discussed earlier in this decision, the petitioner has not established the substantive 
nature of the proffered position. The petitioner's failure to establish the substantive nature of the 
work to be performed by the beneficiary precludes a finding that the proffered position satisfies at 
least one 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 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. 
Finally, we find that even if the substantive nature of the proffered position had been established, 
the petitioner still failed to establish that the proffered position qualifies as a specialty occupation. 
The petitioner has inconsistently described its minimum educational requirements for the proffered 
position. For instance, in the petitioner's initial letter submitted with the petition, the petitioner 
asserts that the proffered position can be satisfied by a minimum of a bachelor's degree in a wide 
range of fields. Specifically, the petitioner described the minimum educational requirement as a 
"Bachelor's degree in Computer Science, Engineering, Mathematics, Business, a related analytic or 
scientific discipline, or its equivalent in education or work-related experience." Similarly, in its 
response to the RFE, the petitioner stated that it requires "a Bachelor's degree or its equivalent in 
Computer Science, Engineering, Business, Math, Science, Technology, MIS, CIS, Finance, 
Economics, a related analytic or scientific discipline, or the equivalent thereof, as well as working 
experience in the field." The petitioner specifically stated that it is "absolutely customary in the 
computer consulting industry to hire individuals who possess a broad variety of Bachelor degrees 
from technical disciplines (i.e. Computer Science, Engineering, CIS, MIS, Mathematics, 
Technology, and others)." 
However, the petitioner also asserts that the minimum educational requirement for the proffered 
position is "at least a Bachelor's Degree in computers or computer related field of study." Likewise, 
the petitioner submitted an opinion letter from Dr. stating that "a bachelor's degree in a 
Computer Related field is absolutely essential for this position." The petitioner has not provided any 
explanation or evidence to explain how its claimed requirement of a degree in "computers or 
computer related field of study" is consistent with its other claimed requirement of a degree in a 
"broad variety" of analytic, scientific, or technical disciplines. The petitioner's failure to 
consistently articulate the minimum educational requirement for the proffered position precludes a 
finding that the proffered position constitutes a specialty occupation. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence; any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. at 591-92. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
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Page 16 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. !d. 
Assuming arguendo that the minimum educational requirement for the proffered position can be 
satisfied by "a broad variety of Bachelor degrees" as the petitioner alternatively claims, such an 
assertion is tantamount to an admission that the proffered position is not in fact a specialty 
occupation. 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214 (i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. As discussed supra, USCIS interprets the degree requirement at 8 C.F.R. § 
214. 2(h)(4)(iii) (A) to require a degree in a specific specialty that is directly related to the proposed 
position. Thus, the petitioner must demonstrate that the proffered position requires a precise and 
specific course of study that relates directly and closely to the position in question. 
The petitioner's claimed entry requirement of at least a bachelor's degree in a "broad variety" of 
disparate fields, without more, does not denote a requirement in a specific specialty. Again, since 
there must be a close correlation between the required body of highly specialized knowledge and 
the position, a minimum entry requirement of a degree in disparate fields, such as Engineering and 
Finance, would not meet the statutory requirement that the degree be "in the specific specialty (or 
its equivalent)," unless the petitioner establishes how each field is directly related to the duties and 
responsibilities of the particular position such that the required "body of highly specialized 
knowledge" is essentially an amalgamation of these different specialties. Section 21 4(i)(l)(B) of 
the Act (emphasis added). This has not been established here. 
The petitioner's assertion that degrees in these broad fields "are directly applicable to the work 
performed" because they all involve "analysis, logic, mathematics, and computational courses" is 
unpersuasive. The claim that these fields all involve "analysis, logic, mathematics, and 
computational courses" is too broad and vague to establish a close correlation to the proffered 
position. Moreover, the petitioner's assertion is uncorroborated by any documentary evidence. For 
instance, the petitioner did not articulate and document what specific courses are common to all the 
degrees, and establish how each course is directly related to the duties and responsibilities of the 
particular position. Absent such evidence, it cannot be found that the particular position proffered 
in this matter has a normal minimum entry requirement of a bachelor's or higher degree in a specific 
specialty or its equivalent under the petitioner's own standards. 
Furthermore, since there must be a close correlation between the required specialized studies and 
the position, the requirement of a degree with a generalized title or a general-purpose degree, such 
as "Engineering" or "Business," without further specification, does not establish the position as a 
specialty occupation. See Royal Siam Cmp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007 i ; cf 
Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm'r 1988). 
5 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that: 
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Page 17 
For all of the reasons discussed above, the evidence of record fails to establish that the proffered 
position qualifies as a specialty occupation. For this reason, the petition must be denied. 
VI. BENEFICIARY QUALIFIC ATI ONS 
Beyond the director's decision, we find that, even if the petitioner had established that it has an 
employer-employee relationship with the beneficiary and that the proffered position qualifies as a 
specialty occupation, the petition still could not be approved as the beneficiary is not qualified to 
perform the duties of such a specialty occupation. 
The statutory and regulatory framework that we must apply in our consideration of the evidence of 
the beneficiary's qualification to serve in a specialty occupation follows below. 
Section 21 4(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as 
an H-lB nonimmigrant worker must possess: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l )(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, 
and 
(ii) recognition of expertise in the specialty through progressively responsible 
positions relating to the specialty. 
In implementing section 214( i)(2) of the Act, the regulation at 8 C.P.R. § 214. 2(h)(4)(iii)(C) states 
that an alien must also meet one of the following criteria in order to qualify to perform services in a 
specialty occupation: 
!d. 
(1) Hold a United States baccalaureate or higher degree required by the specialty 
occupation from an accredited college or university; 
[t]he courts and the agency consistently have stated that, although a general-purpose 
bachelor's degree, such as a business administration degree, may be a legitimate prerequisite 
for a particular position, requiring such a degree, without more, will not ju stify the granting 
of a petition for an H-1B specialty occupation visa. See, e.g., Tapis Int'l v. INS, 94 
F.S upp.2d 172 , 175-76 (D.Mass.2 000); Shanti, 36 F. Supp.2d at 11 64-66; cf Matter of 
Michael HertzAssocs., 19 I & N Dec. 558, 560 ([Comm 'rJ 1988) (providing frequen tly cited 
analysis in connection with a conceptually similar provision). This is as it should be: 
elsewise, an employer could ensure the granting of a specialty occupation visa petition by 
the simple expedient of creating a generic (and essentially artificial) degree requirement. 
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Page 18 
(2) Hold a foreign degree determined to be equivalent to a United States 
baccalaureate or higher degree required by the specialty occupation from an 
accredited college or university; 
(3) Hold an unrestricted state license, registration or certification which authorizes 
him or her to fully practice the specialty occupation and be immediately 
engaged in that specialty in the state of intended employment; or 
( 4) Have education, specialized training, and/or progressively responsible 
experience that is equivalent to completion of a United States baccalaureate or 
higher degree in the specialty occupation, and have recognition of expertise in 
the specialty through progressively responsible positions directly related to the 
specialty. 
In addition, 8 C.P.R. § 214. 2(h)(4) (v)(A) states: 
General. If an occupation requires a state or local license for an individual to fully 
perform the duties of the occupation, an alien (except an H-lC nurse) seeking H 
classification in that occupation must have that license prior to approval of the 
petition to be found qualified to enter the United States and immediately engage in 
employment in the occupation. 
Therefore, to qualify an alien for classification as an H -l B nonimmigrant worker under the Act, the 
petitioner must establish that the beneficiary possesses the requisite license or, if none is required, 
that he or she has completed a degree in the specialty that the occupation requires. Alternatively, if 
a license is not required and if the beneficiary does not possess the required U.S. degree or its 
foreign degree equivalent, the petitioner must show that the beneficiary possesses both 
(1) education, specialized training, and/or progressively responsible experience in the specialty 
equivalent to the completion of such degree, and (2) recognition of expertise in the specialty 
through progressively responsible positions relating to the specialty. 
In order to equate a beneficiary's credentials to a U.S. baccalaureate or higher degree, the provisions 
at 8 C.P.R. § 214. 2(h)(4)(iii)(D) require one or more of the following: 
(1) An evaluation from an official who has authority to grant college-level credit for 
training and/or experience in the specialty at an accredited college or university 
which has a program for granting such credit based on an individual's training 
and/or work experience; 
(2) The results of recognized college-level equivalency examinations or special credit 
programs, such as the College Level Examination Program (CLEP), or Program on 
Noncollegiate Sponsored Instruction (PONSI); 
(3) An evaluation of education by a reliable credentials evaluation service which 
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Page 19 
specializes in evaluating foreign educational credentials;6 
(4) Evidence of certification or registration from a nationally-recognized professional 
association or society for the specialty that is known to grant certification or 
registration to persons in the occupational specialty who have achieved a certain 
level of competence in the specialty; 
(5) A determination by the Service that the equivalent of the degree required by the 
specialty occupation has been acquired through a combina6on of education, 
specialized training, and/or work experience in areas related to the specialty and 
that the alien has achieved recognition of expertise in the specialty occupation as a 
result of such training and experience .... 
In accordance with 8 C.P.R. § 214.2 (h)( 4)(iii)(D)(5): 
For purposes of determining equivalency to a baccalaureate degree in the 
specialty, three years of specialized training and/or work experience must be 
demonstrated for each year of college-level training the alien lacks .... It must be 
clearly demonstrated that the alien's training and/or work experience included the 
theoretical and practical application of specialized knowledge required by the 
specialty occupation; that the alien's experience was gained while working with 
peers, supervisors, or subordinates who have a degree or its equivalent in the 
specialty occupation; and that the alien has recognition of expertise in the 
specialty evidenced by at least one type of documentation such as: 
(i) 
(ii) 
(iii) 
(iv) 
Recognition of expertise in the specialty occupation by at least two 
recognized authorities in the same specialty occupation; 7 
Membership in a recognized foreign or United States association or 
society in the specialty occupation; 
Published material by or about the alien in professional publications, 
trade journals, books, or major newspapers; 
Licensure or registration to practice the specialty occupation in a foreign 
6 The petitioner should note that, in accordance with this provision, we will accept a credentials evaluation 
service's evaluation of education only, not training and/or work experience. 
7 Recognized authority means a person or organization with expertise in a particular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested. A recognized authority' s 
opinion must state: (1) the writer's qualifications as an expert; (2) the writer's experience giving such 
opinions, citing specific instances where past opinions have been accepted as auth oritative and by whom; (3) 
how the conclusions were reached; and (4) the basis for the conclusions supported by copies or citations of 
any research material used. 8 C.P.R. § 214.2(h)(4)(ii). 
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NON-PRECEDENT DECISION 
country; or 
(v) Achievements which a recognized authority has determined to be 
significant contributions to the field of the specialty occupation. 
It is always worth noting that, by its very terms, 8 C.P.R. § 214. 2(h)(4)(iii)(D)(5) is a matter strictly 
for USCIS application and determination, and that, also by the clear terms of the rule, experience 
will merit a positive determination only to the extent that the record of proceeding establishes all of 
the qualifying elements at 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) - including, but not limited to , a type of 
recognition of expertise in the specialty occupation. 
In the instant matter, the petitioner submitted two evaluations from Dr. concluding that the 
beneficiary has the equivalent of a Bachelor's degree in Management Information Systems based on 
her academic coursework and professional experience. However, for the reasons discussed below, 
we will afford these evaluations no probative value. We may, in our discretion, use as advisory 
opinion statements submitted as expert testimony. 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. Matter of Caron International, 19 I&N Dec. 791 (Comm'r 1988). 
As discussed earlier, Dr. characterization of the proffered position and its minimum 
educational requirements are inconsistent from some of the petitioner's statements. For example, 
Dr. concludes that "a bachelor's degree in a Computer Related field is absolutely essential 
for this position," whereas the petitioner has stated that bachelor's degrees from "a broad variety of 
... technical disciplines" including "Engineering, Business, Math, Science, Technology, MIS, CIS, 
Finance, Economics, a related analytic or scientific discipline, or the equivalent thereof" are 
acceptable for the proffered position. The petitioner has not provided any explanation or evidence 
to explain these inconsistencies. These inconsistencies undermine the evaluation's overall 
credibility. 
Moreover, Dr. does not sufficiently explain the factual basis for his conclusions. For 
instance, Dr. concludes that the beneficiary's work experience has taught her equivalent 
skills to those taught in seventeen different classes, including several programming and software 
design/engineering courses. However, Dr. does not explain how he came to that 
conclusion, such as exactly which bodies of specialized knowledge the beneficiary gained through 
which particular job duties, and how such knowledge correlates to the listed classes. Dr. 
also concludes that that beneficiary's three years of work experience - which is equivalent to one 
year of academic coursework - is equivalent a Bachelor's degree in Management Information 
Systems. However, he does not explain how he came to this conclusion, particularly considering 
that the beneficiary's bachelor's degree is in architecture and her graduate degree is in construction 
engineering management. As such, these are conclusory statements that are not entitled to 
evidentiary weight. Simply going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. at 165. 
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Page 21 
We further find that insufficient evidence to establish that Dr. evaluation meets the 
provisions at 8 C.P.R. § 214. 2(h)(4)(iii)(D) (l ). While Dr. attests that he has "the authority 
to determine whether the school is to grant college-level credit for training, and/or courses taken at 
other U.S., or international universities," his attestation alone is not sufficient to establish that he 
does, in fact, have such authority. Nor is his attestation alone sufficient to establish that that 
has a program for granting college level credit based on an individual's training 
and/or work experience in the particular specialty. 
Lastly, the petitioner did not submit evidence to establish that the beneficiary's training and/or work 
experience included the theoretical and practical application of specialized knowledge required by 
the specialty occupation; that her experience was gained while working with peers, supervisors, or 
subordinates who have a degree or its equivalent in the specialty occupation; and that the 
beneficiary has recognition of expertise in the specialty evidenced by at least one type of 
documentation specified in 8 C.P.R. § 214. 2(h)(4) (iii)(D)(5). 
Based on the above, the evidence of record contains insufficient evidence to establish that the 
beneficiary is qualified to perform the duties of the proffered position. For this final reason, the 
petition will be denied. 
VII. CONCL USION AND ORDER 
As set forth above, the evidence of record does not demonstrate the substantive nature of the 
proffered position. As such, the evidence does not establish that the petitioner qualifies as a United 
States employer, and that the proffered position qualifies as a specialty occupation. Accordingly, 
the petition will be denied. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d at 145 (noting that we 
conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 
683. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 20 13). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.