dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re : 21199799 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 28, 2022 
The Petitioner seeks to employ the Beneficiary under the H-lB nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(HXi)(b) , 8 U.S.C. 
§ 1101(a)(15XH)(iXb). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both: (a) the theoretical and practical application of a body 
of highly specialized knowledge ; and (b) the attainment of a bachelor 's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The 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 I&N Dec. 369, 375 (AAO 2010) . We review the questions in this matter de novo. 
Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will 
dismiss the appeal. 
I. ANALYSIS 
Upon review of the entire record, for the reasons set out below, we have determined that the Petitioner 
has not demonstrated that the proffered position qualifies as a specialty occupation. The Director 
concluded that the Petitioner did not establish that the offered position qualifies as a specialty 
occupation. In the decision , the Director thoroughly discussed the Petitioner's failure to meet any of 
the four regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I)-( 4). The Director also determined that 
the Petitioner's job description did not adequately convey the substantive work that the Beneficiary 
would perfonn because it lacked sufficient detail. 
Upon consideration of the entire record, including the evidence submitted and arguments made on 
appeal, we adopt and affirm the Director's ultimate determination with the comments below. See 
Matter of P. Singh, Attorney, 26 I&N Dec. 623,624 (BIA 2015) (citing Matter of Burbano, 20 l&N 
Dec. 872, 874 (BIA 1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing 
tribunal decides that the facts and evaluative judgments prescinding from them have been adequately 
confronted and correctly resolved by a trial judge or hearing officer, then the tribunal is free simply to 
adopt those findings" provided the tribunal's order reflects individualized attention to the case). 
What the law requires, and employers must demonstrate to U.S. Citizenship and Immigration Services 
(USCIS), is the nature of the specialty occupation. ITServe All., Inc. v. Cissna, 443 F. Supp. 3d 14, 
39 (D.D.C. 2020). Aligning with that authority, USCIS may require the offered position's job duties 
to be sufficiently detailed such that it can determine that those daily assignments will be in the specialty 
occupation. In other words, if the duties are not sufficiently detailed to convey the substantive nature 
of the position, then a petitioner has not demonstrated that a beneficiary would occupy a qualifying 
position. The law requires petitioners to demonstrate the nature of the specialty occupation. Id. 
The regulation at 8 C.F.R. § 214.2(h)(4)(i)(A)(l) requires that a foreign worker "[w]ill perf01m 
services in a specialty occupation which requires theoretical and practical application of a body of 
highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as 
a minimum requirement for entry into the occupation in the United States ... " Stated differently, 
petitioners must demonstrate the nature of the specialty occupation through sufficiently detailed job 
duties, responsibilities, or functions. A crucial aspect of this matter is whether the Petitioner has 
sufficiently described the proffered position's duties sufficiently that we may discern the nature of the 
position, and whether the position actually requires the theoretical and practical application of a body 
of highly specialized knowledge attained through at least a baccalaureate degree in a specific 
discipline. We conclude that the Petitioner has not done so. 
On appeal the Petitioner offers a new set of position duties, but it did not present these duties before 
the Director. The Petitioner asse1is that the petition and the request for evidence (RFE) did not provide 
a sufficient amount of space for text in which to provide a better job description. While the space 
available on the physical Form 1-129 may be limited, nothing prevented the Petitioner from submitting 
separate correspondence offering a detailed set of duties. More importantly, the RFE sought a more 
detailed job description in at least two instances. This informed the Petitioner of was needed to better 
reveal the substantive nature of the offered position. 
When the regulation or correspondence from the Director notified the Petitioner of a requirement, but 
the organization did not provide the specifically requested material before the Director, new material 
supplied at the appellate stage should not factor into our appellate determination. If the Petitioner 
wished to address this issue, it should not start at the appellate stage, but before the initial reviewing 
authority. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter ofObaigbena, 19 I&N 
Dec. 533,537 (BIA 1988); Matter of Jimenez, 21 l&N Dec. 567,570 n.2 (BIA 1996). As such, we 
will not consider the newly presented duties on appeal, and the petition will remain denied. 
We agree that the duties as presented before the Director did not sufficiently establish the substantive 
nature of the position and in what capacity the Beneficiary will be employed. Absentthat foundational 
showing, we cannot determine whether the proffered position is a specialty occupation. Based on this 
shortcoming, we cannot conclude that the Petitioner has sufficiently demonstrated the actual, 
substantive nature of the work the Beneficiary would perform. This precludes a finding 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 the particular 
position, which is the focus of criterion one; (2) industry positions which are parallel to the proffered 
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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. 
II. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden here, and the 
petition will remain denied. 
ORDER: The appeal is dismissed. 
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