dismissed H-1B Case: Systems Analysis

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-G-E- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 11,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a systems analyst and to classify him 
as a nonimmigrant worker in a specialty occupation. See Immigration and Nationality Act (the Act) 
§ 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, 
denied the petition. The matter is now before us on appeal. Upon de novo review, we will dismiss 
the appeal. 
I. ISSUES 
The issue before us is whether the proffered position qualifies as a specialty occupation in 
accordance with the applicable statutory and regulatory provisions. As an additional basis, we will 
also address whether the Petitioner has established an employer-employee relationship with the 
Beneficiary. 
II. SPECIALTY OCCUPATION 
We will first address whether the evidence of record establishes that the Petitioner will employ the 
Beneficiary in a specialty occupation position. 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.P.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Matter of A-G-E- Inc. 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
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. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
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Matter of A-G-E- Inc. 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (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"). Applying this standard, USCIS regularly approves H-lB petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions , for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty or its equivalent directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the Beneficiary, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner , 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
B. The Petitioner and the Proffered Position 
The Petitioner stated in its support letter that it owns four 
Nevada. The Petitioner further indicated that the Beneficiary would perform the following duties as 
a systems analyst (verbatim): 
• Research optimal hardware and emerging software technologies to determine 
optimal hardware and software upgrades in the food service industry. 
• Systems must accurately and efficiently navigate food service, budget, 
accounting, staffing, marketing, advertisement and track consumers. 
• Upgrade touch screen terminals-they just be robust with a high tolerance to 
withstand inevitable harsh environmental conditions and daily high volume 
transactions . 
• Prepare information and technology budget performing cost benefit analysis of 
various technology, software and hardware. Present findings to management. 
• Design, configure, install, maintain and update computer systems including all 
software and hardware at all locations. 
• Test computer systems regularly to ensure functionality. 
• Train the system's end users and write, provide instruction manuals. 
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(b)(6)
Matter of A-G-E-Inc. 
In response to the request for evidence (RFE), the Petitioner provided additional duties as follows, in 
pertinent part: 
• Managing POS operations in restaurants 
• Implementing network security at restaurant level including installing cameras 
and networking. 
• Crystal Reports 9.0 
• Antivirus/Spyware in enterprise environment 
• Backup software/hardware 
• Overseeing the maintenance and administration of POS 
• Active Directory (General) 
• Mobile Phone (Apple iPhone) 
• Purchasing of all required software, hardware and IT supplies as required. 
• Maintaining company assets and keeping software up to date. 
• Troubleshoot and resolve technical hardware and software issues with EM Micros 
5. 0 POS Systems 
• Responsible for catastrophic recovery for all restaurants systems within 24 hours 
• Contribute to the opening of over 50 restaurant units installing configuring and 
validating POS systems 
• Responsible for installing, configuring and supporting all Windows compatible 
hardware and software POS systems for all restaurant units 
• Lead and mentor Jr. Level I-II Specialists 
• Maintain network connectivity via Tl lines for all restaurants in the country 
• Responsible for updating and maintaining restaurants POS Sybase database's 
through SQL scripts 
• Develop systems for catastrophic recovery for restaurant units 
• Design and develop Micros 3 700 databases for all restaurant concept 
units 
• Troubleshoot and resolve technical hardware and software issues with POS 
Systems 
• Troubleshoot and resolve Windows 2000, XP, and Vista issues 
• Utilize proprietary ticketing system to manage ticket queue 
C. Analysis 
When determining whether a position is a specialty occupation, we must look at the nature of the 
business offering the employment and the description of the specific duties of the position as it 
relates to the particular employer. To ascertain the intent of a petitioner, USCIS looks to the Form 
I-129 and the documents filed in support of the petition. It is only in this manner that the agency can 
determine the exact position offered, the location of employment, the proffered wage, et cetera. 
Pursuant to 8 C.F.R. § 214.2(h)(9)(i), the Director has the responsibility to consider all of the 
evidence submitted by a petitioner and such other evidence that he or she may independently require 
to assist his or her adjudication. Further, the regulation at 8 C.F.R. § 214.2(h)(4)(iv) provides that 
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Matter of A-G-E- Inc. 
"[a]n H-1B petition involving a specialty occupation shall be accompanied by [d]ocumentation ... 
or any other required evidence sufficient to establish . . . that the services the beneficiary is to 
perform are in a specialty occupation." 
For H -1 B approval, the Petitioner must demonstrate a legitimate need for a specialty occupation 
position to exist and to substantiate that it has H -1 B caliber work for the Beneficiary for the period 
of employment requested in the petition. It is incumbent upon the Petitioner to demonstrate it has 
sufficient work to require the services of a person with at least a bachelor's degree in a specific 
specialty, or its equivalent, to perform duties at a level that requires the theoretical and practical 
application of at least a bachelor's degree level of a body of highly specialized knowledge in a 
specific specialty for the period specified in the petition. 
As noted, this petition was filed for the Beneficiary to work as a part-time systems analyst. 
However, we find that the evidence of record does not sufficiently establish the substantive nature of 
the proffered position. 
We first note that the Petitioner did not provide any information with regard to the order of 
importance and/or frequency of occurrence with which the Beneficiary will perform the described 
functions and tasks. Thus, the Petitioner did not specify which tasks were major functions of the 
proffered position, and establish the frequency with which each of the duties would be performed 
(e.g., regularly, periodically or at irregular intervals). As a result, the Petitioner did not establish the 
primary and essential functions of the proffered position, and which duties, if any, require theoretical 
and practical application of a body of highly specialized knowledge, and the attainment of a 
baccalaureate or higher degree in the specific specialty as the minimum for entry into the occupation. 
We further note that some of the Beneficiary's duties provided in the support letter are copied from 
the section "What Computer Systems Analysts Do" in the Department of Labor's Occupational 
Outlook Handbook. This type of generalized description may be appropriate when defining the 
range of duties that may be performed within an occupational category. However, it does not 
adequately convey the substantive work that the Beneficiary will perform within the Petitioner's 
business operations and, thus, generally cannot be relied upon by a petitioner when discussing the 
duties attached to specific H -1 B employment. 
Specifically, the Beneficiary's duties are described in terms of generalized and generic functions that 
do not convey sufficient substantive information to establish the relative complexity, uniqueness 
and/or specialized of the proffered position or its duties. For example, the Beneficiary's duties 
include "implement network security at restaurant level including installing cameras and 
networking" as well as "backup software/hardware." The Petitioner does not convey either the 
substantive nature of the work that the Beneficiary would actually perform, any particular body of 
highly specialized knowledge that would be theoretically and practically applied to perform it or the 
educational level of any knowledge that may be necessary, to execute such duties. In addition, the 
Petitioner lists "Crystal Reports 9.0," "Active Directory (General)," and "Mobile Phone (Apple 
iPhone )" as duties without providing additional information regarding the actual work that the 
Beneficiary will perform. To the extent described by the Petitioner, the duties do not provide a 
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(b)(6)
Matter of A-G-E- Inc. 
sufficient factual basis to persuasively support the claim that the position's actual work would 
require the theoretical and practical application of highly specialized knowledge in a specific 
specialty directly related to the demands of the proffered position. 
Moreover, the record of proceeding contains inconsistent information about the nature of the 
proffered position, which undermines the Petitioner's credibility with regard to the services that the 
Beneficiary will perform. Specifically, the Petitioner provided contradictory statements regarding 
the Beneficiary 's work location and the scope of his services. 
For example, as noted, the Petitioner initially indicated that it owns four restaurants. 
However, the Petitioner indicated in the labor condition application that the Beneficiary would only 
work at three franchise locations in Nevada. The Petitioner also submitted an itinerary 
listing the same three locations in Nevada. The Petitioner stated that "[the Beneficiary] will be 
providing service in [the Petitioner]'s three Nevada locations only" and that "[the Beneficiary] will 
not be providing service to our California restaurant[s]." However, in response to the RFE, the 
Petitioner again stated that it operates four restaurants. Then, on appeal, the Petitioner 
states that it owns only three restaurants. 
We further note that the Petitioner filed another H-lB petition for the Beneficiary by its affiliate 
entity, _ which owns six restaurants. 1 Throughout the record, the 
Petitioner asserts that it "independently own[s] and operate[s] a number of restaurants" from its 
affiliate, and the proffered position is a "separate position for a separate company." On appeal, the 
Petitioner maintains that it "does not own the [six restaurants owned by its affiliate] and 
is not involved i[n] their operation." 
However, in response to the RFE, the Petitioner provided additional duties in a document titled 
"Requirement and need of a system analyst for [the affiliate]." Further, the Petitioner's justified the 
creation of the proffered position by stating that "[b ]ringing these costs in-house will serve the 
bottom line particularly in light of our impending expansion from 6 restaurants to 26 restaurants." 
(Emphasis added.) Therefore, it contradicts the Petitioner's claim that the proffered position is a 
separate position from its affiliate. 
Moreover, in response to the RFE, the Petitioner indicated that the Beneficiary would "contribute to 
the opening of over 50 restaurant units configuring and validating POS systems," and "maintain 
network connectivity . 
. . for all restaurants in the country." Thus, it appears that the Beneficiary 
would work on behalf of a number of franchises ultimately owned by the Petitioner's CEO in the 
United States and not just Nevada, as was stated in the petition. Further, it appears that the 
1 USCIS records indicate that the H-IB petition filed by the affiliate was considered in the same H-IB cap lottery as the 
Petitioner and subsequently approved. However , it was later revoked on based on the findings that the 
Petitioner and its affiliate violated 8 C.F.R. §214.2(h)(2)(i)(G) by filing multiple H-IB petitions on behalf of the same 
Beneficiary , and also that the proffered position offered by its affiliate was not a specialty occupation. We take 
administrative notice of the petition filed by the affiliate 
(b)(6)
Matter of A-G-E- Inc. 
Petitioner intends for the Beneficiary to work on behalf of more franchise locations than 
those directly owned by the Petitioner. Moreover, even with the addition of 20 
restaurants, the Petitioner did not demonstrate how the Beneficiary could potentially service 50 
restaurants as mentioned in the position duties. 
In addition, the Petitioner stated that the Beneficiary would "lead and mentor junior level I-II 
specialists"; however, the Petitioner did not provide any evidence that it employs any junior level 
specialists. Instead, it stated that it currently outsources this function to a contractor named 
"[I]t is incumbent upon the petitiOner to resolve the inconsistencies by independent objective 
evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the Petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92. Further, "going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings." In re Soffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter o.fTreasure Craft 
ofCal. , 14 I&N Dec. 190 (Reg' l Comm'r 1972)). 
The Petitioner has not provided sufficient consistent details regarding the nature and scope of the 
Beneficiary's employment or substantive evidence regarding the specialty occupation work that the 
Beneficiary would perform. Without a meaningful job description, the record lacks evidence 
sufficiently concrete and informative to demonstrate that the proffered position requires the 
theoretical and practical application of a body of highly specialized knowledge and the attainment of 
a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into 
the occupation. The tasks as described do not consistently communicate (I) the substantive nature 
and scope of the Beneficiary' s employment within the Petitioner's business operations; (2) the actual 
work that the Beneficiary would perform; (3) the complexity, uniqueness and/or specialization of the 
tasks; and/or ( 4) the correlation between that work and a need for a particular educational level of 
highly specialized knowledge in a specific specialty. 
Therefore, we are precluded from finding that the proffered position is a specialty occupation under 
any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) , because it is the substantive nature of that work that 
determines (1) the normal minimum educational requirement for entry into the particular position, 
which is the focus of criterion 1; (2) industry positions which are parallel to the proffered position 
and thus appropriate for review for a common degree requirement, under the first alternate prong of 
criterion 2; (3) the level of complexity or uniqueness of the proffered position, which is the focus of 
the second alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of 
specialization and complexity of the specific duties, which is the focus of criterion 4. Thus, the 
Petitioner has not satisfied any of the criteria under the applicable provisions at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A). 
Matter of A-G-E- Inc. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
As an additional basis, we note that the petition cannot be approved because the Petitioner has not 
demonstrated that it qualifies as a United States employer. 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 not corroborated 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 not established 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-1B nonimmigrant worker). Again and as previously discussed, there is 
insufficient evidence detailing where the Beneficiary will work, the specific duties to be performed 
by the Beneficiary, or for which company the Beneficiary will ultimately perform these 
services. Therefore, the petition cannot be approved for this additional reason. 
IV. CONCLUSION 
As discussed, the evidence of record does not demonstrate: (1) that the proffered position is a 
specialty occupation; and (2) that the Petitioner established a valid employer-employee relationship 
with the Beneficiary. Consequently, the appeal will be dismissed. 
We may deny an application or petition that does not comply with the technical requirements of the 
law even if the Director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enters., Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). 
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 Enters., Inc. v. United States, 229 F. Supp. 2d at 1037; see also BDPCS, Inc. 
v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) ("When an agency offers multiple grounds for a 
decision, we will affirm the agency so long as any one of the grounds is valid, unless it is 
demonstrated that the agency would not have acted on that basis if the alternative grounds were 
unavailable."). 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter o[Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met? 
2 As the identified ground of ineligibility is dispositive of the appeal, we will not discuss any additional deficiencies we 
observe in the record of proceeding. 
8 
Matter of A-G-E-Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-G-E- Inc., ID# 14041 (AAO Feb. 11, 2016) 
However, we will briefly note that 8 C.F.R. § 214.2(h)(2)(i)(G) states, "[a]n employer may not file, in the same fiscal 
year, more than one H-lB petition on behalf of the same alien if the alien is subject to the numerical limitations of 
section 214(g)(l)(A) ofthe Act or is exempt from those limitations under section 214(g)(5)(C) ofthe Act." (Emphasis 
added). Therefore, the determination of whether the present petition should be denied under 8 C.F.R. § 214.2(h)(2)(i)(G) 
is relevant only when the Petitioner meets the regulatory definition of a "United States employer" as that term is defined 
at 8 C.F.R. § 214.2(h)(4)(ii). In the instant case, the record of proceeding does not establish that the Petitioner will have 
an employer-employee relationship with the Beneficiary; therefore, so we do not need to consider whether or not the 
petition should be denied under 8 C.F.R. § 214.2(h)(2)(i)(G). 
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