dismissed H-1B Case: Software Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 9731916 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-18) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 26, 2020 
The Petitioner, a software services organization, seeks to employ the Beneficiary temporarily under the 
H-18 nonimmigrant classification for specialty occupations. See Immigration and Nationality Act (the 
Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-18 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 California Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker, 
concluding that the record did not establish that the proffered position qualified as a specialty 
occupation. The matter is now before us on appeal. 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 Christa's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-18 nonimmigrant as a foreign national "who is 
coming temporarily to the United States to perform services ... in a specialty occupation described in 
section 214(i)(l) ... "(emphasis added). Section 214(i)(I) of the Act, 8 U.S.C. § 1184(i)(I), defines the 
term "specialty occupation" as an occupation that requires "theoretical and practical application of a 
body of highly specialized knowledge, and 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 section 214(i)(I) of the Act, but adds a non­
exhaustive list of fields of endeavor. In addition, 8 C.F.R. § 214.2(h)(4)(iii)(A) provides that the 
proffered position must meet one of four criteria to qualify as a specialty occupation position.1 Lastly, 
1 8 C.F.R. § 214.2(h)(4)(iii)(A) must be read with the statutory and regulatory definitions of a specialty occupation under 
section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). We construe 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 
8 C.F.R. § 214.2(h)(4)(i)(A)(1) states that an H-1B classification may be granted to a foreign national 
who "will perform services in a specialty occupation ... "(emphasis added). 
Accordingly, to determine whether the Beneficiary will be employed in a specialty occupation, we 
look to the record to ascertain the services the Beneficiary will perform and whether such services 
require the theoretical and practical application of a body of highly specialized knowledge attained 
through at least a bachelor's degree or higher in a specific specialty or its equivalent. Without 
sufficient evidence regarding the duties the Beneficiary will perform, we are unable to determine whether 
the Beneficiary will be employed in an occupation that meets the statutory and regulatory definitions of 
a specialty occupation and a position that also satisfies at least one of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Further, as recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir 2000), 
where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. The court held that the former Immigration and Naturalization 
Service had reasonably interpreted the statute and regulations as requiring the petitioner to produce 
evidence that a proffered position qualifies as a specialty occupation on the basis of the requirements 
imposed by the entities using the beneficiary's services. Id. Such evidence must be sufficiently 
detailed to demonstrate the type and educational level of highly specialized knowledge in a specific 
discipline that is necessary to perform that particular work. 
By regulation, the Director is charged with determining whether the petition involves a specialty 
occupation as defined in section 214(i)(1) of the Act. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The Director 
may request additional evidence in the course of making this determination. 8 C.F.R. § 103.2(b)(8). 
In addition, a petitioner must establish eligibility at the time of filing the petition and must continue to 
be eligible through adjudication. 8 C.F.R. § 103.2(b)(1). 
II. PROCEDURAL SHORTCOMING 
The Petitioner, which is located inl I Ohio, asserts the Beneficiary will work for an end-client 
inl I Ohio. However, the record does not contain sufficient evidence to establish the services 
the Beneficiary will perform. Specifically, the record (1) does not describe the position's duties with 
sufficient detail; and (2) does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. The Director denied the petition based on 
two independent grounds: (1) the failure of the position requirements to satisfy the definition of a 
specialty occupation; and (2) the Petitioner did not demonstrate eligibility under the regulatory criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
Each of these individual issues standing alone would serve as an independent basis for a denial. 
Therefore, the appellant here, must demonstrate that each stated ground for the denial was incorrect. 
However, the Petitioner insufficiently addresses item 1 by mentioning that requirement three times in 
the appeal brief, but only offering a conclusory assertion with no analysis or argument in support of 
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"). 
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that eligibility claim. Such ipse dixit assertions will not carry the Petitioner's burden of demonstrating 
eligibility. 2 Therefore, the Petitioner has abandoned its eligibility claims under item 1.3 
To explain, the reason for filing an appeal is to provide an affected party with the means to remedy 
what they perceive as an erroneous conclusion of law or statement of fact within a decision in a 
previous proceeding. See 8 C.F.R. § 103.3(a)(1)(v). By presenting only a generalized statement, such 
as a conclusory assertion, without explaining the specific aspects of the denial they consider to be 
incorrect, the affected party has failed to identify the basis for the appeal. Matter of Valencia, 19 l&N 
Dec. 354, 354-55 (BIA 1986). If the Petitioner does not explain the specific aspects of the decision 
that they consider to be incorrect, they have failed to meaningfully identify the reasons for taking an 
appeal. Id. In order to review the appeal, it would therefore be necessary to search through the record 
and speculate on what possible errors the Petitioner claims. Several federal courts of appeals support 
this concept.4 
As a result, even if the Petitioner overcame the issues it addresses within the appeal brief (eligibility 
under the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)), it still would not demonstrate that the petition 
should be approved. When an appellant fails to properly challenge one of the independent grounds 
upon which the Director based their overall determination, the filing party has abandoned any 
challenge of that ground, and it follows that the Director's adverse determination will be affirmed. It 
is unnecessary to analyze additional grounds when another independent issue is dispositive of the appeal. 5 
Consequently, we will briefly evaluate whether the Director's ultimate conclusion should stand on the 
specialty occupation definition issue to determine whether the petition should remain denied. 
The Petitioner initially stated the position required a bachelor's degree or higher in marketing, business 
administration, or a closely related field. To prove that a job requires the theoretical and practical 
application of a body of highly specialized knowledge as required by section 214(i)(1) 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 interpret the degree requirement to be in a specific 
specialty that is directly related to the proposed position. The Petitioner's acceptance of a business 
administration degree to perform the duties of the proffered position without further specification, 
2 See Matter of Hernandez-Casillas, 20 l&N Dec. 262, 289 n.10 (1990); In re Grand Jury Subpoena Dated July 6, 2005, 
510 F.3d 180, 184 (2d Cir. 2007). See also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (citing to Turpin v. Merrell 
Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (6th Cir.), cert. denied, 506 U.S. 826 (1992)). 
3 See Singh v. Ashcroft, 361 F.3d 1152, 1157 (9th Cir. 2004) (finding abandonment, or that an issue is waived, in cases 
where the petitioner's description of the grounds for appeal lacks the requisite specificity); Desravines v. U.S. Atty. Gen., 
343 F. App'x 433, 435 (11th Cir. 2009) (a passing reference in the arguments section of a brief without substantive 
arguments is insufficient to raise that ground on appeal). 
4 See Zivojinovich v. Barner, 525 F.3d 1059, 1062 n.1 (11th Cir. 2008) (citing Davis v. Hill Engineering, Inc., 549 F.2d 
314, 324 (5th Cir. 1977)); Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979); Greenbriar, Ltd. v. City of 
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989); Minghai Tian v. Holder, 745 F.3d 822, 827 (7th Cir. 2014); 
Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (citing Paterson-Leitch Co. v. Massachusetts Municipal 
Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)); Singh v. Gonzales, 416 F.3d 1006, 1010 (9th Cir. 2005) (citing 
to Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820 (9th Cir. 2003)); Nazakat v. I.N.S., 981 F.2d 1146, 1148 (10th Cir. 1992). 
5 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another 
independent issue is dispositive of the appeal); see also Matter of L-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible); Matter of M-A-S-, 24 l&N Dec. 762, 767 
n.2 (BIA 2009) (generally finding that a waived ground of ineligibility may form the sole basis for a dismissed appeal). 
3 
strongly suggests that the Petitioner's particular position does not require a bachelor's degree in a 
specific specialty. 6 Cf. Matter of Michael Hertz Assocs., 19 l&N Dec. 558, 560 (Comm'r 1988). 
An entry requirement of a bachelor's or higher degree in business administration with a concentration in 
a specific field, or a bachelor's or higher degree in business administration combined with relevant 
education, training, and/or experience, in certain instances, might qualify the proffered position as a 
specialty occupation. See Tapis lnt'I v. INS, 94 F. Supp. 2d 172, 176-77 (D. Mass. 2000). In either case, 
the Petitioner must demonstrate that the entry requirement is equivalent to a bachelor's or higher degree 
in a specific specialty that is directly related to the proffered position. 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 "business administration" without further specification, does not establish 
the position as a specialty occupation. Cf. Michael Hertz Assocs., 19 l&N Dec. at 560. Here, the 
Petitioner does not expound upon the focus of the business administration degree, specifically as it 
directly relates to the duties of the proposed position. Accordingly, it appears the Petitioner accepts a 
general business degree as sufficient to enter the proposed position. 
Although a general-purpose bachelor's degree, such as a degree in business, 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, 
484 F.3d at 147. See also Irish Help at Home LLC v. Melville, 13-cv-00943-MEJ, 2015 WL 848977 
*6-8 (N.D. Cal. Feb. 24, 2015), aff'd, 679 F. App'x 634 (9th Cir. 2017). For this reason alone, the 
proffered position would not be a specialty occupation, regardless of its claims under the four criteria 
at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
We observe additional reasons that the position does not qualify as a specialty occupation, and in turn 
the Petitioner has not demonstrated the petition should be approved. A review of the offered position's 
description reveals that the duties are identical to much of the information in DOL's Occupational 
Information Network (O*NET) Online report for the occupational category "Market Research Analysts 
and Marketing Specialists." Providing generic job duties from O*NET or another Internet source for an 
offered position is generally insufficient to establish eligibility.7 The duties themselves provide the nature 
of the employment. Id. While this type of description may be appropriate when defining the range of 
duties that may be performed within an occupational category, it does not adequately convey the 
substantive work that the Beneficiary would perform at the end-client worksite.8 Here, the job 
6 Additionally, we note the Petitioner provided a list of knowledge associated with the position but did not explain the 
nexus between that knowledge and a bachelor's degree in business administration. Therefore, it has shown that it would 
accept a generalized bachelor's degree in business administration. Furthermore, as we discuss later in this decision, it 
appears more likely than not that the Petitioner copied the offered position's duties from a U.S. Department of Labor (DOL) 
resource, which significantly diminishes the value of that knowledge-set. As the Petitioner demonstrated a propensity to 
present material from other sources as its own, this causes us to question whether that set of knowledge listed within the 
petition was also copied from another source. 
7 Cf. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating 
specifics are an important indication of the nature of a beneficiary's duties, otherwise meeting the requirements would 
simply be a matter of providing a job title or reiterating the regulations.) 
8 DOL guidance states that for a wage level determination, it is important that the job description include "sufficient 
information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and 
4 
descriptions in the record do not sufficiently communicate: (1) the actual work that the Beneficiary would 
perform; (2) the complexity, uniqueness and/or specialization of the tasks; and/or (3) the correlation 
between that work and a need for a particular level of knowledge in a specific specialty. 
Even the content that does not appear to be copied from the O*NET raises concerns. The sole original 
duty was to "gather information to determine potential sales of software and quality assurance services, 
including marketing campaign, which would entail (10%) .... " We end the quote in what would 
appear to be a premature fashion before specifying what that duty would "entail" because immediately 
after the percentage, the Petitioner began a separate duty that it copied directly from the O*NET. As 
a result, it appears the Petitioner did not devote careful attention to crafting the letter and the manner 
in which it was presenting the duties. We note that the Director's decision raised an issue with the job 
description, but the Petitioner did not rebut or respond to that shortcoming other than to assert that it 
included "specific duties (not generic duties)." In other words, the Petitioner offered the same copied 
job description on appeal even after the Director put it on notice of the shortcoming. 
The issues associated with the duties' deficiencies don't end there. It appears that the duties within the 
end-client letter actually originated with the Petitioner. The Petitioner provided two letters from the 
end-client; one with the initial filing and a second one in response to the Director's request for evidence 
(RFE). The first end-client letter did not contain any duties or education requirements for the position. 
The duties within the end-client's second letter dated in October 2019 are identical to those the 
Petitioner initially provided more than six months earlier in April 2019, including formatting, verb 
tense, capitalizations and typographical errors. 
It appears the only difference between any of the duties within the correspondence from the Petitioner 
or the end-client occurred between the letters both parties offered in the RFE response. The Petitioner's 
communication contained a percentage of time the Beneficiary would spend performing each function, 
while the end-client's letter lacked this information. As a general concept, when a petitioner has provided 
material from different entities, but the language and structure contained within is notably similar, the 
trier of fact may treat those similarities as a basis for questioning a petitioner's claims. See Matter of 
R-K-K-, 26 l&N Dec. 658, 665 (BIA 2015); Surinder Singh v. Board of Immigration Appeals, 438 F.3d 
145, 148 (2d Cir. 2006); Wang v. Lynch, 824 F.3d 587,592 (6th Cir. 2016); Dehonzai v. Holder, 650 F.3d 
1, 8 (1st Cir. 2011). When correspondence contain such similarities, it is reasonable to infer that the 
petitioner who submitted the strikingly similar documents is the actual source from where the similarities 
derive. See Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007). 
Given the unique similarities in the letters and the order in which the Petitioner presented the evidence, 
we conclude that the Petitioner has not established (by a preponderance of the evidence) that the duties 
originated from the end-client. Moreover, the Petitioner did not offer material from the end-client 
explaining how these generally described duties directly correlate with the work the Beneficiary would 
perform on its project. We conclude that-in accordance with Defensor, 201 F.3d at 387-88, which 
provides that when the work is to be performed for entities other than the petitioner, evidence of the client 
the level of understanding required to perform the job duties." U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
5 
companies' job requirements is critical-the Petitioner has not demonstrated these elements are the 
end-client's actual requirements. 
Even the letters from the end-client seemingly indicated that the duties and education requirements for 
the proffered position originated from the Petitioner. After listing the exact same duties and the same 
prerequisites, the end-client stated it was their understanding that the Petitioner's practices were the 
industry norm. That account would be contrary to the Petitioner's statement within the appeal brief in 
which it states the "end-client, indicates that due to the specialized and complex nature of the job duties, 
a Bachelor's degree or higher in Marketing or Business Administration or closely related field, is required 
for entry into the position." 
The Petitioner must resolve these ambiguities in the record with independent, objective evidence pointing 
to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1998). Because someone other 
than the author appears to have drafted a portion of the end-client letter, it possesses further diminished 
probative value. In evaluating the evidence, the truth is to be determined not by the quantity of evidence 
alone but by its quality. See Chawathe, 25 l&N Dec. at 376 (quoting Matter of E-M-, 20 l&N Dec. 77, 
79-80 (Comm'r 1989)). While we are unable to definitively determine the original source of the 
proposed duties, it remains the Petitioner's burden to 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. 
The opinion letter does not add sufficient value to the Petitioner's claims as the author concluded that 
the duties the Petitioner copied from the O*NET were specialized and complex and coincidentally 
provided the exact same education requirements that the petitioning organization expressed. First, we 
do not find that the evaluator's opinion is based upon sufficient information about the actual position 
proposed here. The author simply reiterated the Petitioner's initial list of job duties which were copied 
from the O*NET. As previously discussed, however, this type of generic job description that is not 
specific to the Petitioner, the end-client, or the Beneficiary is insufficient to demonstrate the 
substantive nature of the proffered position. There is no indication that the author possesses additional, 
in-depth knowledge of the actual position in this petition. 
Second, the author did not discuss the duties of the proffered position in any substantive detail as it 
relates to the end-client. He did not discuss the job in the specific context of the end-client's business, 
or the end-client project upon which the Beneficiary would work. There is no indication that he 
possessed any knowledge of the position beyond this limited job description prior to documenting his 
opinion (e.g., interviewed the Petitioner's or end-client's managerial teams, observed either entity's 
employees about the nature of their work, or documented the knowledge that these workers apply on 
the job). His level of familiarity with the actual job duties as they would be performed in the context 
of the end-client project has therefore not been substantiated. 
In this matter, the record does not contain sufficient and probative documentation on this issue from 
(or endorsed by) the end-client, the company that will actually be utilizing the Beneficiary's services, 
that identifies the essence of the project, the substantive nature of the duties he wi 11 carry out, and any 
particular academic or work experience requirements for the position. Therefore, based upon our 
review of the record, we conclude that the Petitioner has not established the substantive nature of the 
work the Beneficiary will perform. 
6 
This 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 
one; (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 two; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion two; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion three; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion four. 
In conclusion, the Petitioner has not sufficiently addressed or overcome the Director's adverse 
decision on the independent ground relating to satisfying the definition of a specialty occupation. 
Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and 
hereby reserve the Petitioner's appellate arguments regarding the position's qualification as a specialty 
occupation under the four criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). Bagamasbad, 429 U.S. at 25; 
L-A-C-, 26 l&N Dec. at 526 n.7; M-A-S-, 24 l&N Dec. 762, 767 n.2. 
111. 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. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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