dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 3, 2024 In Re: 30927571 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB 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 nonimmigrant 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 record did not 
establish that the Petitioner is not an H-1 B dependent employer and that the proffered position is a 
specialty occupation. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LABOR CONDITION APPLICATION 
A petitioner seeking to file an H-1B petition must accompany that petition with a certified labor 
condition application (LCA). Section 212(n)(l) of the Act, 8 U.S.C. § l 182(n)(l); 20 C.F.R. 
§ 655.73 l(a). While the Department of Labor (DOL) is responsible for certifying the LCA, U.S. 
Citizenship and Immigration Services (USCIS) evaluates the information contained in the LCA to 
ensure it "corresponds with" the H-1B petition. See 20 C.F.R. § 655 .705(b) ("DHS determines 
whether the petition is supported by an LCA which corresponds with the petition .... "). See also 
Matter ofSimeio Solutions, 26 I&N Dec. 542, 546 n.6 (AAO 2015). 
Section 212(n)(3)(A) of the Act, 8 U.S.C. § 1182(n)(3)(A), defines an H-1B dependent employer, in 
pertinent part, as an employer that has at least 51 fulltime equivalent employees employed in the 
United States and employs H-1B nonimmigrants in a number that is equal to at least 15 percent of the 
number of such full-time equivalent employees. An LCA which does not accurately reflect the 
employer's H-lB dependency status cannot be used to support a H-lB petition. 20 C.F.R. 
§ 655.736(g)(l). 
The Petitioner indicated on Form I-129, Petition for a Nonimmigrant Worker, that it had 800 
employees. It also attested that it was not an H-lB dependent employer on both the petition and the 
accompanying certified LCA. Because USCIS records reflected that the Petitioner had received 
approvals for more than 160 H-1 B petitions in the three years prior to the filing of the petition ( which 
would be more than 15 percent of its workforce), the Director issued a request for evidence (RFE). 1 
The Director also explained that the Petitioner was "responsible for providing evidence that 
demonstrates that [it] ... meet[s] all requirements" and "that all parties were eligible for the requested 
benefit when [it] filed the petition by a preponderance of the evidence." In response, the Petitioner 
submitted an undated document that listed 823 total employees, of which 115 were in H-lB status. 
The Petitioner asserted that "[t ]his list clearly indicates that the number of employees on H-1 B visa is 
115 which brings the percentage of employees on H-lB to 14%. Thus, the petitioner is not an H-lB 
dependent employer." 
The Director denied the pet1t10n, noting the discrepancy with the Petitioner's total number of 
employees. Specifically, the Director explained that by signing the Form I-129, it had certified under 
penalty of perjury that it employed 800 workers at the time of filing. Yet, in response to the RFE, the 
Petitioner provided a document listing 823 employees. In addition, the Director noted that the 
Petitioner did not provide documentary evidence, such as payroll summaries or Forms 941, to establish 
whether it employed 800 or 823 U.S. workers and only 115 H-lB workers. Absent probative evidence 
as to the accurate numbers, the Director concluded that the Petitioner had not established that it was 
not an H-lB dependent employer. 
On appeal, the Petitioner contends that the discrepancy with the total number of employees is 
"immaterial ... as there is continuous turnaround of employees which is difficult to predict." The 
Petitioner further asserts that whether it had 800 or 823 employees on the day of the filing, it does not 
change the fact that "it is not a dependent employer as the total number of employees on H-lB do not 
exceed the 15% or more of the foll-time equivalent employees." 2 We disagree. 
The "continuous turnaround of employees" does not relieve the Petitioner of its obligations to provide 
"true and correct" information in the petition and supporting documents ( as it certified under penalty 
of perjury to doing upon signing the Form I-129 and LCA). Further, we note that the regulations at 
20 C.F.R. §§ 655.705(c)(5) and 655.700(d)(4)(iv) require the Petitioner to "develop sufficient 
documentation to meet its burden of proof with respect to the validity of the statements made in its 
LCA and the accuracy of information provided, in the event that such statement or information is 
challenged." 
As noted above and explained by the Director, the Petitioner obtained more than 160 H-lB approvals 
(which is the equivalent of at least 20 percent of their initially claimed 800 employees) in the three 
years immediately prior to the filing of this petition. Here, the Petitioner has not provided any 
1 The Director may request additional evidence when they evaluate eligibility for immigration benefits. 8 C.F.R. 
§ 103.2(b )(8). 
2 Unsubstantiated asse11ions do not constitute evidence. See, e.g., Matter of S-M-, 22 l&N Dec. 49, 51 (BIA 1998) 
("statements in a brief, motion. or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight"). 
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documentation or even addressed the 45 plus individuals that received H-lB approvals but were not 
included on the list of employees. Nor does the undated list of employees provided in response to the 
RFE and resubmitted on appeal sufficiently establish the "true and correct" total number of employees 
at the time of filing or the number of those in H-1 B status to demonstrate that it is not an H-1 B 
dependent employer. The Petitioner must resolve these discrepancies 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). 
A petitioner's burden of proof comprises both the initial burden of production, as well as the ultimate 
burden of persuasion. Matter of Y-B-, 21 I&N Dec. 1136, 1142 n.3 (BIA, 1998). A petitioner must 
satisfy the burden of persuasion, meaning it must establish the degree to which its arguments and 
evidence should persuade or convince USCIS that the requisite eligibility parameters have been met. 
Dir., Office of Workers' Comp. Programs, Dep'tofLaborv. Greenwich Collieries, 512 U.S. 267,274 
( 1994 ). Without probative evidence a petitioner generally cannot meet its burden of proof to establish 
eligibility for an immigration benefit by a preponderance of the evidence. For all the reasons above, 
we conclude the Petitioner has not provided sufficient independent and objective evidence 
demonstrating that it is not an H-1 B dependent employer. 
II. SPECIALTY OCCUPATION 
The Act at Section 214(i)(l), 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: (A) the 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. 
§ 2 l 4.2(h)( 4)(ii) adds a non-exhaustive list of fields of endeavor to the statutory definition, while the 
regulation at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires that the proffered position must also meet one of 
four criteria to qualify as a specialty occupation. 
The Petitioner is offering the Beneficiary the position oftest engineer. The LCA indicated the position 
is located within the "Software Quality Assurance Analysts and Testers" occupational category 
corresponding to the Standard Occupational Classification Occupational Information Network code 
15-1253.00. The Petitioner stated in its initial support letter that the proffered position "requires at the 
minimum a bachelor's degree or its equivalent in computer science, computer engineering, software 
engineering, information systems or equivalent, or a related field." As part of the response to the 
Director's RFE requesting additional information to establish that the offered position requires at least 
a bachelor's degree or higher (or its equivalent) in a specific specialty, the Petitioner included copies 
of five of its job postings, only two of which were for the position of test engineer. Both state that a 
"bachelor's degree in computer science, information systems, engineering, math or related field is 
desired." (emphasis added). 3 
The Director concluded that the Petitioner's own job postings demonstrated that the proffered position 
does not meet the definition of a specialty occupation. Specifically, the Director explained that "[a] 
desire for certain education is not a requirement for that education." The Director further noted that 
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3 "Desire" is defined as "to long or hope for." See Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/desire. 
even if the two postings had required (rather than desired) the stated education, the inclusion of an 
engineering degree as acceptable was too broad to establish the position as a specialty occupation, 
unless the Petitioner demonstrated how each field of engineering, such as nuclear or chemical 
engineering, directly relates to the duties of the offered position. A 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. Since there must be a close correlation between the required specialized 
studies and the position, the requirement of a degree with a generalized title, such as science or 
engineering, without further specification, does not establish the position as a specialty occupation. 
Cf Matter ofMichael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) (holding that a general 
college degree is not sufficient for specialty occupation purposes). 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. We have consistently stated that, 
although a general-purpose bachelor's degree may be a legitimate prerequisite for a particular position, 
requiring such a degree, without more, will not justify a conclusion that a particular position qualifies 
for classification as a specialty occupation. Royal Siam Corp., 484 F.3d at 147. 
On appeal, the Petitioner contends that the Director erred by stating that the education requirement 
was "none" because the job postings "clearly list a requirement of a bachelor's degree in computer 
science, information systems, engineering, math, or related field is desired." For the reasons below, 
we agree with the Director. 
Here, the Director's decision included a chart of the five job postings with "Job Title" and "Minimum 
Educational Requirement" as the two columns and correctly listed "None. Bachelor's degree in 
computer science, information systems, engineering, math or related field is 'desired"' as the 
"Minimum Educational Requirement" for the two test engineer positions. Notably, the remaining 
three job postings do not contain the language "is desired," indicating that the specified education for 
those positions is required. More importantly, the Petitioner does not explain why they posted job 
vacancies for a test engineer that did not require at least a bachelor's degree in a specific specialty, 
contradicting their claimed requirements. Nor do they address the Director's statements regarding the 
inclusion of engineering on the postings.4 Regardless, the conflicting information between the 
Petitioner's stated requirements and the listed "Education/Training" on their job postings undermine 
their claims and hinder us from determining their actual minimum requirements to qualify for the 
position. Because the Petitioner did not provide an explanation for the variances in the position 
requirements, it has not satisfied it burden of proof Where there are inconsistencies in the record, it 
is the Petitioner's burden to resolve these inconsistencies using independent, objective evidence 
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. at 591-92. 
As a result, the Petitioner has not overcome the Director's conclusion that the proffered position is not 
a specialty occupation. 
4 We agree with the Director that because there must be a close correlation between the required "body of highly specialized 
knowledge" and the position, a minimum entry requirement of a bachelor's degree in disparate fields of study, such as any 
engineering field, would also not meet the statutmy 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. Section 214(i)(l )(B) of the Act ( emphasis added). 
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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 a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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