Stapelton Mgmt, LLC v. Sessions et al [USCIS-AAO],

No. 17-00422 (D.Conn. March 15, 2017) COMPLAINT of H1-B AAO Appeal Dismissal (VSC) Matter of S-M- LLC, ID# 16117 (AAO Apr. 1, 2016)

 

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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

STAPLETON ) Petition Receipt No.: EAC 14 213 52724

MANAGEMENT LLC, ) Docket No: 5:17-cv-00422

)

Plaintiff/Petitioner, )

)

) COMPLAINT/PETITION

) FOR REVIEW OF AGENCY ACTION

v. )

)

JEFF SESSIONS, )

Attorney General, and )

RON ROSENBERG, )

Chief of Administrative )

Appeals Office, )

and United States )

Department of Homeland )

Security, Citizenship and )

Immigration Services )

)

Defendants/Respondents. )

Plaintiff/Petitioner Stapleton Management LLC (“Stapleton”) by its attorneys

the Law Office of Mario DeMarco, P.C., hereby alleges upon information and belief:

1. This action is brought to review the April 1, 2016 denial of petitioner’s

Petition for Nonimmigrant Worker by the United States Department of

Homeland Security, U.S. Citizens and Immigration Services, Administrative

Appeals Office (“AAO”).

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2. Stapleton explains as follows that it properly files its Petition for Review with

this Honorable Court.

3. Stapleton has exhausted all administrative remedies by filing an appeal of the

denial of Petitioner’s H-1B nonimmigrant petition with the U.S. Citizenship

and Immigration Services, Administrative Appeals Office, with a written

denial of said appeal being issues on April 1, 2016. This is an action brought

pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, and 28 U.S.C.

§1331, seeking review of a decision by the U.S. Citizenship and Immigration

Services (“USCIS”), Administrative Appeals Office (“AAO”), to deny a form

H1-B nonimmigrant visa filed by Stapleton on behalf of Marek Vild.

4. The agency’s decision to deny the visa was arbitrary, capricious, an abuse of

discretion and was not supported by substantial evidence, as the Petitioner

presented overwhelming evidence in support of the H1-B petition and

exhaustively rebutted the agency’s allegation that the proffered position

qualifies as a specialty occupation, and that the beneficiary is qualified to

perform services in a specialty occupation. Lastly, the allegation that Form I-

129 was improperly completed is an abuse of discretion as the omitted error

on the application was insignificant and minor, and could be amended.

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STATEMENT OF JURISDICITON AND VENUE

5. Jurisdiction is invoked pursuant to 28 USC §1331, the “federal question”

statute based upon the Administrative Procedures Act (“APA”), 5 USC §701

et. seq. Petitioner’s claims are based on the Immigration and Nationality Act

(“INA”), 8 U.S.C. §1101 et. seq., 8 U.S.C.§1329, the Administrative

Procedures Act (“APA”), 5 U.S.C. §701 et. seq.

6. Specifically USCIS’ Administrative Appeals Office denied Petitioner’s H1-B

Visa Petition.

7. Venue is proper pursuant to 28 USC § 1391 (e), which states that a lawsuit

against the federal government or a federal official acting in his or her official

capacity can be brought in any judicial district where 1) a defendant resides,

2) a substantial part of the events or omissions giving rise to the claim

occurred, or 3) the plaintiff resides if no real property is involved in the action.

8. Petitioner Stapleton holds a main office in the State of Connecticut, Town of

Greenwich. This office is the office the beneficiary, Marek Vild, would have

had continuing employment if the petition for nonimmigrant visa was granted.

The ends of justice would be best served by maintaining venue in this district

as Petitioner’s office is located in this district.

9. The Supreme Court has found that 28 USC §1331 serves as a jurisdictional

basis for federal courts to review agency action. See Califano v. Sanders, 430

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U.S. 99 (1977). See also Bowen v. Massachusetts, 487 U.S. 879, 891 n.16

(1988).

PARTIES

10. Petitioner is a limited liability company of the United States with offices in

Greenwich, Fairfield County, Connecticut.

11. Respondent Jeff Sessions is Attorney General of the United States, and in his

official capacity, he is in charge of the Department of Justice, of which the

USCIS is one agency.

12. Ross Rosenberg is the Chief of the Administrative Appeals Office, the office

issuing the denial of the Appeal.

13. The United States Department of Homeland Security, Citizenship and

Immigration Service is the agency responsible for issuing the visa denial.

FACTS AND CAUSE OF ACTION

14. Stapleton is an international investment company that was founded in 1984

by its principal, Craig Stapleton. Its daily business dealings include domestic

and international investments, real estate negotiations, complex financial

transactions, interpretations and evaluations of highly technical international

commerce compliance, and constant interaction with international attorneys

hired to effectuate all business dealings with the company.

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15. Stapleton maintains a large portfolio of commercial and residential real estate

properties, including Stapleton Springer Winery, which is a winery located in

the Czech Republic that distributes wine throughout Europe and the U.S.

16. Through its partnership with Benson Oak Capital in Prague, Czech Republic,

Stapleton is a partner in three (3) multinational businesses operating out of

the Czech Republic. Stapleton continues to add to this portfolio of

investments.

17. Marek Vild (“Marek”) is a citizen of the Czech Republic who has earned a

Bachelor's degree from Charles University majoring in International

Relations and Political Science. He has been working as the Manager of

Investments/Real Estate for Stapleton since May 15, 2012.

18. Stapleton first submitted an I-129 Petition for Nonimmigrant Worker, along

with an I-907 Request for Premium Processing, on behalf of Marek on or

about September 30, 2011. See Exhibit A.

19. A Request for Evidence (“RFE”) was issued on or about March 9, 2012.

Petitioner subsequently responded to said RFE on or about May 10, 2012. See

Exhibit B.

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20. On or about May 15, 2012, USCIS approved Stapleton’s I-129 Petition and

Marek was granted the H1B non-immigrant status from May 15, 2012 to

September 30, 2014. See Exhibit C.

21. On or about July 29, 2014, Stapleton again submitted an I-129 Petition and I-

907 Request for Premium Processing on behalf of Marek, seeking to extend

Marek’s H1B status for an additional three years. See Exhibit D.

22. USCIS issued an RFE on August 13, 2014. See Exhibit E.

23. Petitioner again duly responded to the RFE on or about October 16, 2014. See

Exhibit F.

24. On or about April 17, 2015, USCIS issued a decision denying Stapleton’s I-

129 Petition on behalf of Marek. Petitioner duly filed an I-290B to initiate the

instant appeal before the Administrative Appeals Office. Said appeal was

denied in a written decision dated April 1, 2016. See Exhibit H.

25. The beneficiary obeyed the law and departed the United States within the

statutory period which impaired the Stapleton businesses.

STANDARD AND SCOPE OF REVIEW

26. A reviewing Court may only set aside agency actions, findings and

conclusions if they are “arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with the law or unsupported by substantial

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evidence. Visiting Nurse Ass’n Gregoria Auffant, Inc. v. Thompson, 447 F.3d

68, 72 (1st Cir. 2006) (quoting 5 U.S.C. §706(2).

27. Substantial evidence means “more than a mere scintilla”. It means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971).

28. Section 701 of the Administrative Procedure Act, 5 U. S. C. § 701 (1964 ed.,

Supp. V), provides that the action of "each authority of the Government of the

United States," which includes the Department of Transportation, is subject

to judicial review except where there is a statutory prohibition on review or

where "agency action is committed to agency discretion by law." Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)

29. Section 706 of the Administrative Procedure Act, 5 U. S. C. § 706 (1964 ed.,

Supp. V), which provides that a "reviewing court shall . . . hold unlawful and

set aside agency action, findings, and conclusions found" not to meet six

separate standards.

30. In all cases agency action must be set aside if the action was "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law"

or if the action failed to meet statutory, procedural, or constitutional

requirements. Id. referencing 5 U. S. C. §§ 706 (2)(A), (B), (C), (D) (1964 ed.,

Supp. V).

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31. “In certain narrow, specifically limited situations, the agency action is to be

set aside if the action was not supported by "substantial evidence." Id. “And

in other equally narrow circumstances the reviewing court is to engage in a de

novo review of the action and set it aside if it was "unwarranted by the

facts." Id. referencing 5 U. S. C. §§ 706 (2)(E), (F) (1964 ed., Supp. V).

32. In most employment-based cases, the statutory eligibility requirements for

visa classifications are sufficiently specific to overcome the threshold set forth

in INA § 242 (a)(2)(B). See Fogo de Chao (Holdings) Inc. v. USDHS, 769

F.3d 1127, 1138 (D.C. Cir. 2014).

33. In Fogo de Chao (Holdings) Inc, the Court opined that there was no

jurisdictional bar to challenging an L-1B visa classification denial because the

criteria for L-1B visa determinations are laid out in the statute, including

specifically a definition of “specialized knowledge”. See Fogo de Chao

(Holdings) Inc. v. USDHS, 769 F.3d 1127, 1138.

THE DECISION BY USCIS WAS ARBITRARY, CAPRICIOUS, AN

ABUSE OF DISCRETION AND OTHERWISE NOT IN

ACCORDANCE WITH THE LAW

34. 5 USC §706 provides for two general types of relief and generally sets forth

the scope of review for each. The first relief involves a court compelling

government action, a relief not relevant to the instant petition. The second,

however, allows a court to “hold unlawful and set aside agency actions,

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findings and conclusions,” that meet one or more of six standards. 5 USC

§706(2).

35. One such standard is “arbitrary, capricious, and abuse of discretion or

otherwise not in accordance with the law. 5 USC §706(2).

36. Stapleton is an international investment company that was founded in 1984

by its principal, Craig Stapleton.

37. Its daily business dealings include domestic and international investments,

real estate negotiations, complex financial transactions, interpretations and

evaluations of highly technical international commerce compliance, and

constant interaction with international attorneys hired to effectuate all

business dealings with the company.

38. Stapleton maintains a large portfolio of commercial and residential real estate

properties, including Stapleton Springer Winery, which is a winery located in

the Czech Republic that distributes wine throughout Europe and the U.S.

39. Through its partnership with Benson Oak Capital in Prague, Czech Republic,

Stapleton is a partner in three (3) multinational businesses operating out of

the Czech Republic.

40. Marek is a citizen of the Czech Republic who has earned a Bachelor's degree

from Charles University majoring in International Relations and Political

Science.

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41. He has been working as the Manager of Investments/Real Estate for Stapleton

since May 15, 2012.

42. Stapleton first submitted an I-129 Petition for Nonimmigrant Worker, along

with an I-907 Request for Premium Processing, on behalf of Marek on or

about September 30, 2011. A Request for Evidence (“RFE”) was issued on or

about March 9, 2012. Petitioner subsequently responded to said RFE on or

about May 10, 201

43. On or about May 15, 2012, USCIS approved (emphasis assed) Stapleton’s I-

129 Petition and Marek was granted the H1B non-immigrant status from May

15, 2012 to September 30, 2014.

44. On or about July 29, 2014, Stapleton again submitted an I-129 Petition and I-

907 Request for Premium Processing on behalf of Marek, seeking to extend

Marek’s H1B status for an additional three years. USCIS issued an RFE on

August 13, 2014.

45. Petitioner again duly responded to the RFE on or about October 16, 2014. On

or about April 17, 2015, USCIS issued a decision denying Stapleton’s I-129

Petition on behalf of Marek.

46. Petitioner filed an I-290B and submitted an appeal before the Administrative

Appeals Office (“AAO”) with the AAO denying said appeal of April 1, 2016.

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The Standard for Approval of an H1b non-immigrant visa status

47. An alien must satisfy two requirements to qualify for an extension of his visa

as a worker in a “specialty occupation.” See 8 U.S.C. § 1101(a)(15)(H)(i)(b);

8 U.S.C § 1184(i)(1).

48. An alien must be (1) employed in a “specialty occupation”3 and (2) qualified

to perform services in the “specialty occupation.” 8 C.F.R. §

214.2(h)(4)(i)(A)(1). To qualify as a “specialty occupation,” the position must

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 are so specialized and complex that

knowledge required to perform the duties is usually associated with the

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attainment of a baccalaureate or higher degree. See Unical Aviation Inc. v.

U.S. I.N.S., 248 F. Supp. 2d 931, 934 (C.D. Cal. 2002).

USCIS erred by failing to give due consideration and deference to USCIS’s

prior approval of Stapleton’s H1B Petition on behalf of Marek when USCIS

never indicated that there had been any material change in circumstances,

material error, or new adverse material information.

49. On April 23, 2004, William R. Yates, the Associate Director for Operations,

issued an interoffice memorandum entitled, “The Significance of a Prior CIS

Approval of a Nonimmigrant Petition in the Context of a Subsequent

Determination Regarding Eligibility for Extension of Petition Validity

(hereinafter the “Yates Memo”).

50. The Yates Memo was issued to provide guidance on how the extent to which

an adjudicator of a subsequent petition extension may question a prior

adjudicator’s approval where there has been no material change in the

underlying facts. Specifically, the Yates Memo specifically lays out the policy

that “[i]n matters relating to an extension of nonimmigrant petition validity

involving the same parties (petitioner and beneficiary) and the same

underlying facts, a prior determination by an adjudicator that the alien is

eligible for the particular nonimmigrant classification should be given

deference.”

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51. The Yates Memo further mandates that a prior approval need not be given

deference only in situations where: “(1) it is determined that there was a

material error with regard to the previous petition approval; (2) a substantial

change in circumstances had taken place; or (3) there is new material

information that adversely impacts the petitioner’s or beneficiary’s

eligibility.”

52. A thorough review of the facts and evidence presented in Stapleton’s petition

to extend Marek’s H1B status will demonstrate without any dispute that there

was no material change in the underlying facts of the Petition whatsoever.

53. Both the Petitioner (Stapleton) and the Beneficiary (Marek) are the same.

54. The proffered position of Manager of Investments/Real Estate remained the

same, with essentially the same job duties presented to USCIS.

55. By filing this Petition, Stapleton was simply seeking to extend Marek’s H1B

status so that they can continue to employ him in the same capacity he had

been working in for the past three years. In light of these circumstances, it is

clear that in denying Stapleton’s Petition for an extension of Marek’s H1B

status, USCIS failed to provide any real explanation for the inconsistency

between its prior approval of Stapleton’s I-129 Petition submitted on behalf

of Marek and the denial of the instant Petition for the extension.

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56. First, USCIS’ decision failed to provide any assertion or explanation of any

allegations that there had been a substantial change in circumstances

concerning Stapleton, Marek, or the proffered position.

57. The Yates Memo defines a “substantial change in circumstances” as one that

involves “any material change to either the petitioner’s or the beneficiary’s

eligibility for the nonimmigrant classification sought.”

58. Again, Petitioner has presented facts and evidence in its Petition that

demonstrates no factual change to either Stapleton or Marek’s eligibility for

the H1B classification.

59. Similarly, USCIS’ decision also failed to provide any assertion or explanation

that some new material information had adversely affected the Stapleton or

Marek’s eligibility for the extension of the H1B status.

60. The Yates memo defines “new material information” as “any fact not

available to the previous adjudicator that would impact the petitioner’s or

beneficiary’s eligibility for the nonimmigrant classification sought.” USCIS’

decision is devoid of any such claim.

61. The Petition clearly demonstrates that there had been no new material

information that impact’s either parties’ eligibility.

62. The Petition merely seeks an extension of the H1B status in involving the

same petitioner, beneficiary, and proffered position.

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63. USCIS’s decision falls short of actually alleging that its prior approval of

Stapleton’s Petition on behalf of Marek was in fact approved erroneously.

64. The Yates Memo defines a “material error” as one that involves the

“misapplication of an objective statutory or regulatory requirement to the facts

at hand.”

65. Nowhere in the decision does USCIS expressly provide any indication or

explanation that it had deemed the prior approvals erroneous due to any

misapplication of an objective statutory or regulatory requirement to the facts

presented. In sum, the lack of explanation on any of these three factors directly

contravenes the policy goals as directed by the Yates Memo.

66. Furthermore, a District Court has previously held that “[w]hile implicitly

recognizing that INS need not abide by previous approvals that might have

been erroneous, the district court found that the agency's failure to explain

why those earlier decisions were incorrect amounted to an abuse of

discretion.” Omni Packaging, Inc. v. U.S. I.N.S., 733 F. Supp. 500, 504

(D.P.R. 1990) [citing Louisiana Philharmonic Orchestra v. I.N.S., 44 F. Supp.

2d 800, 803 (E.D. La. 1999)].

67. Similarly, the Yates Memorandum explicitly requires that “[m]aterial error,

changed circumstances, or new material information must be clearly

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articulated in the resulting request for evidence or decision denying the

benefit sought, as appropriate.”

68. A thorough examination of USCIS’s denial decision will reveal that no

explanation or evidence of any such material error, changed circumstances, or

new adverse material information was ever found by USCIS in connection

with this Petition.

69. As such, it is clear that USCIS’s denial decision did not conform to USCIS’

own policy guidelines and was therefore rendered arbitrarily, capriciously,

and in error.

USCIS erred in determining that a Marek’s political science degree does not

qualify him to perform a specialty occupation

70. In rendering its denial, USCIS did not consider the fact that a political science

degree is a highly versatile degree that enables its holder to go on to pursue

careers in many disciplines.

71. As previously discussed in greater detail in Section III supra, a political

science degree trains its holder in numerous vital skills that are necessarily

applied during the course of the performance of the Manager of

Investments/Real Estate job duties.

72. For example, the American Political Science Association lists as potential

careers for political scientists as including: Budget Examiner or Analyst,

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Corporate Analyst, Corporate Manager, Financial Consultant, Information

Manager, and International Research Specialist, amongst others.

73. Along the same lines, Michigan State University deems a political science

major would be well-equipped to go on to pursue careers as a business

administrator, financial planner, international market researcher, and sales

manager, amongst others.

74. All the aforementioned positions involve performing tasks that overlap those

submitted to USCIS as part of the job description for the proffered position of

Manager of Investments/Real Estate.

75. Furthermore, USCIS also failed to explain the inconsistency of its prior

approval of Stapleton’s H1B Petition on behalf of Marek for the same

proffered position when Marek’s educational qualifications had not changed

from the time of the prior approval.

76. The prior adjudicator of Stapleton’s Petition had undoubtedly thought that

Marek’s political science degree made him qualified for the job.

77. USCIS provided no such explanation for why it deemed the same

qualifications are now suddenly no longer an adequate fit for the position.

78. The consensus of the reputable sources presented herein all agree that the

holder of a political science degree possesses the knowledge, skills, and

versatility to perform the job functions as presented in the Petition.

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79. Therefore, it is clear that USCIS erred in unilaterally deeming that a political

science degree did not fit the job duties of the Manager of Investments/Real

Estate based solely upon a narrow interpretation of the scope of the political

science degree.

80. USCIS did not rely on any established consensus as to what a holder of a

political science/international relations degree could do.

81. Contrary to USCIS’ determination, Petitioner’s position is that the training,

knowledge, and skills that Marek obtained through his Bachelor’s Degree in

Political Science/International Relations makes gives him the right

combination of qualities that makes him uniquely suited to the varied and

complex job duties of the proffered position as submitted to USCIS.

Stapleton had submitted sufficient documents and evidence to meet its burden

to establish that Marek qualified for an extension of his H1B visa status.

82. Stapleton, as the petitioner and employer, had submitted numerous documents

to attest to Marek’s qualifications that make him uniquely suited to the job

duties of the proffered position.

83. First, Stapleton submitted copies of Marek’s degree in Political Science /

International Relations from Charles University, his transcript, and a

Credential Evaluation and Authentication Report from the World Education

Services certifying that his degree is equivalent to a U.S. Bachelor’s Degree.

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84. Therefore, there can be no doubt that Marek clearly meets the educational

requirements for the proffered position.

85. Further, Marek’s fluency in the Czech language and familiarity with the

political, economic, and business climate of the Czech Republic, while not a

strict requirement for the proffered position, certainly makes him an ideal

candidate given Stapleton’s business interests in that country.

86. Stapleton further attached documents demonstrating that they had been

employing Marek successfully as the Manager of Investments/Real Estate

since his prior H1B approval. Stapleton also submitted documents evidencing

Marek’s work product at Stapleton.

87. Together, all these documents affirmatively establishes that Marek is clearly

qualified for the proffered position, especially since he has been successfully

performing his job for the past three years.

USCIS erred by determining that the job duties described for the proffered

position of Manager of Investments/Real Estate as established by the evidence

on the record corresponded to those of a property manager that did not support

a finding that the proffered position qualifies as a specialty occupation.

88. In issuing its denial decision, USCIS determined that the job duties described

for the Petitioner’s proffered position of Manager of Investments/Real Estate

were most akin to that of a property manager as opposed to that of a financial

analyst.

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89. However, in doing so, USCIS completely ignored the portions of the proffered

position’s job duties that go beyond the scope of a typical property manager

and rise to the level where the knowledge and skills obtained from a political

science/international relations degree becomes necessary.

90. Petitioner duly submitted a revised memorandum with detailed job

descriptions for the position of Manager of Investments/Real Estate with the

requested approximate percentages.

91. Contrary to USCIS’ determination, only 20.00% of the Manager of

Investments/Real Estate’s job duties could reasonably be said to be similar to

those of a typical property manager, as indicated by Stapleton on the

explanation of job duties submitted. By contrast, Petitioner attests that 40.00%

of the Manager of Investments/Real Estate’s job duties involves the

management of all of Petitioner’s European-based investments, which

includes business reporting, analysis, and contract negotiation.

92. This constitutes the clear majority of the proffered position’s usual

responsibilities. Such tasks are clearly outside the purview of a standard

property manager.

93. Similarly, a typical property manager would not be expected coordinate and

go on international business trips outside the U.S. as part of the performance

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of his/her duties, which the Manager of Investments/Real Estate will be

expected to do 15.00% of the time.

94. Together, these tasks make up 55.00% of the Manager of Investments/Real

Estate’s job duties, which are entirely unrelated to the duties performed by a

typical property manager. Moreover, a closer examination of the job duties

under “Stapleton Management Domestic Property – Sonoma California”

reveals that the Manager of Investments/Real Estate is tasked with

“identifying wine trends, marketing opportunities and planning vineyards.”

95. Again, these tasks are outside the scope of a typical property manager’s area

of competence, especially one without a Bachelor’s Degree.

96. In issuing its denial decision, USCIS should not be able to unilaterally and

selectively decide and define the proffered position’s job duties in such a

narrow manner in direct contravention of the evidence on the record.

97. By contrast, many of these tasks correspond more closely to the SOC

occupation title of financial analyst, as submitted by Petitioner.

98. In particular, the aforementioned documents submitted by Petitioner clearly

demonstrates that the Manager of Investments/Real Estate does indeed handle

tasks such as: (1) studying economic and business trends; (2) studying a

company’s financial statements to determine its value; (3) meeting with

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company officials to determine a company’s prospects and management; and

(4) prepare written reports, amongst other tasks.

99. All these duties were specifically mentioned by USCIS in its denial decision.

100. In both Petitioner’s initial submission and in the RFE response,

Petitioner duly submitted documentary evidence consisting of reports, charts,

communications, and memos that are regularly prepared, used, and

disseminated by Marek as part of his duties as the Manager of

Investments/Real Estate.

101. In addition, the portion of the Manager of Investments/Real Estate’s

duties dealing with the coordination of the international trips abroad do have

a clear relationship to those of a financial analyst.

102. This is because the purpose of said trips is for the Manager of

Investments/Real Estate and/or the principals of Stapleton to more closely

manage Stapleton’s international investments and set up meetings with

investors and other business contacts abroad.

103. Therefore, in this context, the arrangement of said international trips

absolutely falls within the purview of a financial analyst’s tasks.

104. Based on the detailed job description and supporting evidence

submitted, Petitioner respectfully puts forth that the duties of the Manager of

Investments/Real Estate has been laid out quite clearly and that the evidence

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clearly shows that the duties performed in connection with this proffered

position are specialized and complex as to require the minimum of a

bachelor’s degree in political science/international relations or equivalent.

105. Further, the evidence on the record demonstrate the wide scope of the

tasks that the Manager of Investments/Real Estate would be responsible for

performing that encompasses more than those typically performed by a

property manager, but includes those performed by a financial analyst as well.

As USCIS rightly noted in its decision, a financial analyst is a position that

typically requires a bachelor’s degree or its equivalent to adequately perform

the typical job functions.

106. In light of the foregoing, it is clearly erroneous for USCIS to

unilaterally pigeonhole the duties of the Manager of Investments/Real Estate

into the narrow property manager position when the totality of the evidence

submitted clearly shows that the majority of the tasks performed by the

proffered position exceeds the scope of a typical property manager.

107. In doing so, USCIS is completely eschewing the evidence on the record

in favor of imposing its own interpretation for what the job entails, which it

cannot be allowed to do.

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Even if USCIS correctly determined that the proffered position’s duties were

akin to those of a property manager, USCIS nevertheless erred by determining

that the job duties described strictly did not require a bachelor’s degree or its

equivalent.

108. Assuming that such a determination is correct, USCIS nevertheless still

erred in determining that the job duties described for the proffered position of

Manager of Investments/Real Estate as established by the evidence on the

record strictly did not require a bachelor’s degree or its equivalent. In making

its determination, USCIS relied solely upon the narrow description for the

educational requirements provided in the Department of Labor’s

Occupational Outlook Handbook (OOH). USCIS interpreted the OOH

description of the property manager job as a position that does not require a

bachelor’s degree. However, such a strict interpretation of the educational

requirements of such a position is not the norm or is otherwise consistent even

amongst the U.S. Government’s own sources.

109. Notably, the Occupational Information Network (O-Net) Online

Summary Report for the position of Property, Real Estate, and Community

Association Manager (11-9141.00) clearly states, “Education Most of these

occupations require a four-year bachelor's degree, but some do not.”. In fact,

according to the statistics compiled by the Bureau of Labor Statistics, 48.00%

of all respondents surveyed under the position of Property, Real Estate, and

Community Association Manager possessed a bachelor’s degree, whereas

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only 12.00% of those surveyed responded that their highest level of education

was a high school diploma.

110. Therefore, based on the Department of Labor’s own statistics, it is clear

that (1) the industry standard for an individual performing duties similar to

those of a property manager requires a bachelor’s degree or equivalent and

that (2) a high school diploma is clearly NOT the industry standard for

individuals performing duties similar to those of a property manager and is in

fact, in the clear minority of all cases surveyed.

111. The aforementioned O-Net Online Summary Report for this position

was actually a link from the Bureau of Labor Statistics’ Occupational Outlook

Handbook entry. The O-Net Online system is sponsored by the U.S.

Department of Labor. It is frequently used by the U.S. Department of Labor

in issuing labor certifications in connection with H1B visas.

112. Therefore, even amongst the government’s own sources, there is no

strict consensus that the position of a “property manager” generally does not

require a bachelor’s degree. In fact, the statistics compiled by the Bureau of

Labor Statistics clearly agrees with the Petitioner’s position that a Bachelor’s

Degree is clearly a requirement for an individual performing similar duties to

those of a property manager in the clear majority of cases. In light of this, it is

clear that even the sources that USCIS relies upon to make its determination

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do not yield a strict consensus as to whether it is an industry standard for a

property manager to possess a bachelor’s degree.

113. As such, it is clearly erroneous for USCIS to make a blanket conclusion

that the proffered position of Manager of Investments/Real Estate did not

require a bachelor’s degree based upon the job descriptions and other evidence

provided by Petitioner based solely upon one description in the OOH when

the Department of Labor’s own survey statistics dispute that notion.

USCIS erred by determining that the job duties described for the proffered

position of Manager of Investments/Real Estate as established by the evidence

on the record strictly did not require a bachelor’s degree or its equivalent.

114. Similarly, USCIS erred in determining that the requirement of a

bachelor’s degree is not common to the industry for the proffered position of

Manager of Investments/Real Estate based upon the description and evidence

of the job duties and responsibilities. Based on the job description provided

as well as the supporting evidence submitted demonstrating the type of

documents the individual holding this position would be dealing with on a

daily basis, it is clear that the position of Manager of Investments/Real Estate

is a more fluid position that handles a wide range of tasks from several

disciplines.

115. The reports, charts, communications, and memos that Petitioner

submitted in connection with Stapleton’s domestic and international

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investments and assets clearly demonstrate that the Manager of

Investments/Real Estate is expected to handle material that clearly exceeds

the scope and competence of a typical property manager who may not possess

a bachelor’s degree.

116. For example, the Manager of Investments/Real Estate has to be capable

of managing complicated business dealings of Stapleton’s varied foreign

assets and investments. This involves researching and compiling data and

putting together the memorandum and charts that are used by Stapleton in

evaluating its business prospects and decision-making.

117. Because of the nature of Stapleton’s international investments, the

Manager of Investments/Real Estate must be capable of researching the

business and economic history and trends in countries where Stapleton invests

in.

118. These tasks in turn require that the individual performing this job have

a working knowledge of various international and domestic Czech laws and

regulations pertaining to interstate commerce and investments for each of

these businesses.

119. It also requires the ability to arrange, coordinate, and actually attend

important business trips to the Czech Republic and other countries in order to

inspect Stapleton’s investments abroad.

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120. As such, it becomes clear that a Bachelor’s degree in Political Science

and/or International Relations becomes an essential requirement to the

individual performing these tasks.

121. The Petitioner respectfully argues that the evidence of the record

definitely demonstrates that the individual performing the duties of the

Manager of Investments/Real Estate position most definitely requires a

minimum of a baccalaureate degree or its equivalent.

122. Quite simply, there is no way that a simple “property manager” who

has had no college training on how business is conducted internationally could

be able to perform the proffered job’s duties adequately.

123. In light of the foregoing reasons, it is clear that USCIS erred when

deemed that the proffered position was equivalent to that of a typical property

manager and thus did not require a bachelor’s degree.

124. “A petition should be decided on the actual record, utilizing the correct

portions of relevant resources, and for the actual position to be filled.”

Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs., 839 F. Supp.

2d 985, 997 (S.D. Ohio 2012).

125. In addition, “[t]he knowledge and not the title of the degree is what is

important.

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126. Diplomas rarely come bearing occupation-specific majors. What is

required is an occupation that requires highly specialized knowledge and a

prospective employee who has attained the credentialing indicating

possession of that knowledge.” Id. at 997; See also Tapis Int'l v. I.N.S., 94

F.Supp.2d 172, 175–76 (D.Mass.2000) (rejecting agency interpretation

because it would preclude any position from satisfying the “specialty

occupation” requirements where a specific degree is not available in that

field).

127. Based on the line of reasoning under Residential Fin. Corp., USCIS

should have based its decision on the evidence submitted on the record.

128. As described above, Petitioner respectfully argues that the evidence

submitted definitely demonstrates the necessity of the Bachelor’s Degree in

Political Science/International Relations or its equivalent in order for the

individual holding the position of Manager of Investments/Real Estate to be

able to adequately perform his/her job duties.

129. USCIS should not be able to deny Stapleton’s Petition based upon its

interpretation of what the proffered position’s job duties entail against the

weight of the evidence submitted, which would be evaluating the Petition on

factors that are NOT in the record.

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130. Further, as the Courts in Residential Fin. Corp. and Tapis Int’l cases

noted, because there is no such thing as a degree that is so specifically tailored

to fit the job description of the Manager of Investments/Real Estate, Stapleton

has indicated that an individual who possesses a Bachelor’s Degree in

Political Science/International Relations would possess the suitable training,

skills, and knowledge to be able to perform the required job duties. An

individual who had obtained a political science degree or its equivalent learns:

(1) logic and reasoning skills used for critical analysis and problem solving;

(2) argument and debate skills in order to make convincing arguments and

negotiations; (3) mathematical skills in order to analyze statistical data in

spreadsheet and databases; (4) the knowledge of political structures of

government in different states, countries, and regions; and (5) communication

and research skills applicable in all areas of employment.

131. All of these aforementioned skills are directly relevant and applicable

to the Manager of Investments/Real Estate position. The logic and reasoning

skills are used every day to critically analyze the various sales and business

data, economic trends, and international regulations in order to properly

manage Stapleton’s investments, businesses, and assets.

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132. The Manager of Investments/Real Estate is also expected to negotiate

various business deals and contractual terms with Stapleton’s business

contacts to advance Stapleton’s business interests.

133. The skills gained in statistical analysis is clearly needed in order to

produce and analyze the charts, databases, and other financial/business

calculations as demonstrated in the documents previously submitted.

134. The Manager of Investments/Real Estate must be knowledgeable in the

economics, business climate, and laws and regulations of each state that

Stapleton has investments and assets in, notably the Czech Republic.

135. He / She will be expected to research international and domestic laws

pertaining to interstate commerce. He / She will also be expected to

communicate the findings and data to Stapleton’s principals, as evidenced by

the memoranda submitted by Petitioner, and with Stapleton’s business

contacts both internationally and abroad. In sum, it is exactly these skills that

are acquired by the holder of a political science degree that makes such a

candidate qualified to perform the duties of the proffered position.

136. Clearly, without possessing at least a bachelor’s degree in political

science or the equivalent, such tasks would be nearly impossible for an

individual to perform competently.

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137. As such, USCIS clearly erred when it determined that the job duties

described for the proffered position of Manager of Investments/Real Estate

did not require a bachelor’s degree or its equivalent.

An unsigned portion of the Form I-129 Supplement H was an inadvertent

and harmless error that was easily correctable and not grounds for a

denial of the entire petition

138. The AAO points out to a portion of the Form I-129, specifically page

12 therein, that was inadvertently left unsigned by the Petitioner.

139. This was clearly an error in proof reading and something that was easily

correctable with an amended Petition.

140. The remainder of the Petition was properly completed and so this error

was harmless and not grounds for a dismissal of the entire appeal.

GROUNDS FOR RELIEF

141. Defendants have arbitrarily and capriciously denied Petitioner’s request

for extension of the beneficiary’s temporary employment, abusing its

discretion and wrongfully denying the petition.

142. Defendants owe Petitioner a duty to render a decision in accordance

with the applicable laws.

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143. Petitioner has been greatly damaged by the wrongful denial of the visa

extension and has been deprived of the benefit of the beneficiary’s skills,

services, knowledge and expertise.

144. Defendants, in violation of the Administrative Procedures Act, 5 U.S.C.

§701 et. seq. are unlawfully withholding the visa extension for the beneficiary

Marek Vild to come to the United States and continue his work for Petitioner.

145. Although USCIS maintains the ability to grant or deny immigrant

petitioners, it does not have unfettered discretion in doing so.

146. The agency wrongfully ignored or discounted substantial evidence

without a rational basis.

147. The agency’s action is considered to be arbitrary and capricious and an

abuse of discretion.

148. The decision by USCIS dismissing the appeal is not supported by the

substantial evidence submitted, nor does it offer any reason as to why the

initial visa was approved and then only when Petitioner sought an extension,

was it denied.

149. Petitioner submitted substantial evidence that both the proffered

position qualified as a specialty occupation, and that Mr. Vild’s education and

qualifications rendered him qualified to perform such position.

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150. In sum, USCIS and AAO erred by ignoring the previous visa approval

and the subsequent substantial documentary evidence submitted in support of

the afore-mentioned petition. The arbitrary and capricious standard of review

articulated under 5 U.S.C. §705(2)(A) applies to the agency’s decision.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff prays that this Court:

A. Declare unlawful and set aside the UCSIS’ dismissal dated April 1, 2016, and

the USCIS decision dated April 17, 2015;

B. Approve the H-1B visa petition filed by Stapleton on behalf of Marek Vild;

C. Grant reasonable attorney’s fees and costs of court under the Equal Access to

Justice Act;

D. Grant any further relief, as this Honorable Court may deem appropriate.

Respectfully submitted,

/s/ Mario DeMarco

Law Office of Mario DeMarco, P.C.

1 Gateway Plaza, Suite 2A

Port Chester, New York 10573

Tel: 914-937-2213

Fax: 914-937-3066

Case 3:17-cv-00422-AWT Document 1 Filed 03/15/17 Page 34 of 34

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(b)(6)

MATTER OF S-M- LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 1, 2016

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an "Investments/Real Estate" business, seeks to extend the Beneficiary's temporary employment as a "Manager of Investments/Real Estate" under the H -1 B nonimmigrant classification. 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, Vermont 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 Director denied the petition, finding that the evidence of record: (1) did not establish that the proffered position qualifies as a specialty occupation; and (2) did not establish that the Beneficiary is qualified to perform services in a specialty occupation. Beyond the decision of the Director, we will also address whether the Form I-129 was supported by a corresponding labor condition application (LCA) and whether the Form I-129 was properly completed.

II. FACTUAL BACKGROUND

On the Form I-129, the Petitioner indicted that it is a two-employee "Investments/Real Estate" business located in Connecticut. The Petitioner seeks to extend the Beneficiary's employment in a full-time "Manager of Investments/Real Estate" position at an annual salary of $61,006.

The LCA states that the proffered position corresponds to Standard Occupational Classification (SOC) code and occupation title 13-2051, "Financial Analysts," from the Occupational Information Network (O*NET). The LCA further states that the proffered position is a Level I (entry) position.

In a support letter dated July 18, 2014, the Petitioner described itself as "an international investment company ... [whose] day to day business dealings include domestic and international investments, real estate negotiations, complex financial transactions, interpretations and evaluations of highly technical international commerce compliance, and constant interaction with international attorneys hired to effectuate all business dealings within the company." The Petitioner also stated that "in addition to its large portfolio of commercial and residential real estate properties, [it] also is part

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Matter of S-M- LLC

owner of a winery located in Czech Republic ... and [it] partners m three (3) multinational businesses operating mainly out of the Czech Republic."

The Petitioner described the proffered position as follows:

As a Manager of Investments/Real Estate, [the Beneficiary] will be responsible for accounting/bookkeeping and staff supervision for projects located in the United States and the Czech Republic. [The Beneficiary] will handle all areas of oversight, review and supervision from the . CT location for both Czech Republic and US projects. The employee will also aid in translating documents and translation services between US and Czech counterparts from the , CT location. [The Beneficiary] will travel with other employees of [the Petitioner] for the annual investor conference in the Czech Republic. [The Beneficiary] will act as property manager and bookkeeper for various properties in and

Connecticut.

. . . [The Beneficiary] is expected to organize and manage complex international investments, a task [the Beneficiary] is competent to perform because of his political science background. [The Beneficiary] is also expected to manage large portfolios of commercial and residential real estate and partake in the day to day operations of three (3) multinational businesses which operate out of the Czech Republic. [The Beneficiary] is expected to deal daily with international commerce compliance. Such tasks involve the meeting and communicating with various individuals, the reading and analyzing complex documents, the ability to communicate and negotiate various matters, and the proper and accurate interpretation of complex documents, all tasks necessitating a strong background in analysis, logic, negotiations, mediation, critical thinking, problem solving, computer skills, the skills [the Beneficiary] obtained as a result of his baccalaureate degree with a polity science focus .

. . . The position of Manager of Investments/Real Estate requires the theoretical and practical application of highly specialized knowledge, as the incumbent will be called upon to provide expertise with regard to marketing and business analysis. Therefore, the duties of this professional position could only be satisfactorily discharged by an individual having knowledge of financial analysis and economic principles associated with the completion of at least a Bachelor' s degree in Political Science, International Relations, Economics, Finance, Marketing, or a related analytic discipline, or the equivalent thereof. This is a standard requirement within our organization due to our specialized and sophisticated needs and the responsibility vested within this position. Further, the degree requirement is standard to the industry at large.

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The Petitioner also stated that its minimum educational requirement for entry into the proffered position is at least a "Bachelor's degree in Political Science, International Relations, Economics, Finance, Marketing, or a related analytic discipline, or the equivalent thereof."

In response to the Director' s request for evidence (RFE), the Petitioner further elaborated upon the duties of the proffered position, as follows:

[The Beneficiary] manages and organizes [the Petitioner' s] portfolio of commercial and residential real estate, creates financial reports, reviews and negotiates contract and insurance proposals, negotiates lease contracts. He develops reports on 3 multinational businesses which operate in the Czech Republic. He manages our investment in [the Petitioner's] Winery located in the Czech Republic which distributes wine throughout Europe. On behalf of the winery, [the Beneficiary] communicates with the accounting company based in the Czech Republic, translating and interpreting financial statements. [The Beneficiary] manages international commerce compliance on a daily basis. Such tasks involve meetings and communication with various individuals, reading and analyzing complex documents, their proper and accurate interpretation and all tasks which necessitate a strong background in logic, negotiation, mediation, problem solving and computer skills.

The Petitioner also provided the following "Daily Responsibilities":

[The Petitioner 's 1 International Investments- 40% [The Beneficiary] manages all European based investments for [the Petitioner] including our partnership with the and [the Petitioner' s] Winery. [The Petitioner] has an investment of over 5 Million Euros in these activities. His duties include all areas of analysis, business reporting, and contract negotiation.

[The Petitioner's 1 International Business Trips - 15% The principals of [the Petitioner] travel outside the United States quarterly to our projects in Europe and New Zealand. [The Beneficiary] coordinates these trips and meetings as part of his day to day duties. [The Beneficiary] also travels to Czech Republic twice a year to inspect [the Petitioner' s] investments.

[The Petitioner 's1 Domestic Property- California 15% Using his expertise gained by advising [the Petitioner] with [the Petitioner's] Winery, [the Beneficiary] is responsible for the lease and negotiation activities with our 400,000 square foot Wine Processing facility in California.

3

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[The Petitioner 's} Domestic Properties- Other 20% [The Petitioner] owns and operates office, retail and land development activities in Connecticut and Colorado. [The Beneficiary] is responsible for the day to day management and reporting on all real estate projects.

[The Petitioner 's} Administration- 10% [The Beneficiary] is responsible for the reporting and administration of [the Petitioner's] global portfolio which includes ownership of a multiple international private equity investments and a portfolio of domestic publicly traded stocks.

The Petitioner also stated that the proffered position "has a minimum requirement of a Bachelor's Degree" and that the Beneficiary's predecessor holds a bachelor's degree in business administration.

On appeal, the Petitioner distinguishes the proffered position from a property manager position, and asserts that the proffered position is properly classified under the financial analyst occupational classification. The Petitioner also states that the duties of the proffered position "require the minimum of a bachelor's degree in political science/international relations or equivalent." The Petitioner further explains why a degree in political science/international relations is "an essential requirement" for the individual performing the "wide range of tasks from several disciplines," including knowledge of "economics, business climate, and laws and regulations of each state that [the Petitioner] has investments and assets in, notably the Czech Republic."

III. SPECIALTY OCCUPATION

A. Legal Framework

Section 214(i)(l) ofthe 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.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following:

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

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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:

(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)(l) 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. See K 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)( 1) 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 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

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Matter ojS-M- LLC

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 -1 B 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. users must examine the ultimate employment of the individual, 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. Analysis

Upon review, we find that the evidence of record is insufficient to establish that the proffered position qualifies as a specialty occupation.

First, we find that the Petitioner has provided inconsistent information regarding the mm1mum educational requirements for the proffered position. For instance, the Petitioner initially stated that it requires a "Bachelor's degree in Political Science, International Relations, Economics, Finance, Marketing, or a related analytic discipline." In response to the Director's RFE, the Petitioner stated that it "has a minimum requirement of a Bachelor's Degree," without further specification, and the Beneficiary's predecessor was qualified for the proffered position by virtue of his degree in business administration. The Petitioner now asserts on appeal that it requires a "minimum of a bachelor's degree in political science/international relations or equivalent." No explanation for the variances in educational requirements was provided by the Petitioner. It is thus not clear whether the Petitioner requires: (1) a bachelor's degree in political science, international relations, economics, finance, marketing, or a related field; (2) simply a general bachelor's degree and/or a business administration degree; or (3) a bachelor's degree specifically limited to the fields of political science and/or international relations.

"[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 l&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. Id. at 591-92.

If it is the Petitioner's claim that bachelor's degrees in political science, international relations, economics, finance, marketing, or a related field, are sufficient minimum requirements for entry into

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the proffered position, this claim is inadequate to establish that the proposed position qualifies as a specialty occupation. In general, provided the specialties are closely related, e.g., chemistry and biochemistry, a minimum of a bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a case, the required "body of highly specialized knowledge" would essentially be the same. Since there must be a close correlation between the required "body of highly specialized knowledge" and the position, however, a minimum entry requirement of a degree in disparate fields, such as political science and marketing, 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. 1 Section 214(i)(l )(B) ofthe Act (emphasis added).

It is not readily apparent that fields such as political science and marketing are closely related to each other, or that these fields are directly related to the duties and responsibilities of the particular position proffered in this matter. For example, the Petitioner has not sufficiently explained what courses of study are common between degrees in political science and marketing. Nor has the Petitioner specifically explained how a degree in marketing would provide an individual with the knowledge necessary to perform duties such as investment and property management. Absent this 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. "[G]oing on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings." Matter ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)).

Even if the Petitioner's educational requirement is only a degree in political science and/or international relations, this too is inadequate to establish that the proposed position qualifies as a specialty occupation. The Petitioner has not sufficiently established that a degree in political science and/or international relations is directly related to the duties and responsibilities of the particular position proffered in this matter. That is, the Petitioner has not sufficiently established that a degree in political science and/or international relations would provide an individual with the knowledge necessary to perform financial and economics-related duties reflective of the financial analyst occupational classification chosen here.

1 In other words, while the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret these provisions to exclude positions from qualifying as specialty occupations if they permit, as a minimum entry requirement, degrees in more than one closely related specialty. See section 214(i)( I )(B) of the Act; 8 C.F.R. § 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of record establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the particular position.

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Matter ofS-M- LLC

For example, the Petitioner asserted that "the duties of this professional position could only be satisfactorily discharged by an individual having knowledge of financial analysis and economic principles." The Petitioner has consistently emphasized the nature of its business operations dealing with investments, "complex financial transactions" and "highly technical international commerce compliance." These assertions are consistent with the Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook), which states that financial analysts study and evaluate financial data and economic trends, and lists the fields of study that provide "appropriate preparation" for entry into the occupation as including "accounting, economics, finance, statistics, and mathematics."2 See U.S. Dept. of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Financial Analysts," http://www. b ls. gov I oo h/business-and-financial/print/financial-analysts .htm (last visited Mar. 8, 20 16). However, the Petitioner has not sufficiently explained and documented which courses leading up to an established curriculum in political science and/or international relations would provide such "knowledge of financial analysis and economic principles." While the Petitioner asserts that a political science degree provides "strong skills" in "statistical data," the Petitioner has not established that skills in "statistical data" are equivalent to skills and knowledge in "financial analysis and economic principles."

Alternatively, if it is the Petitioner's claim that a general bachelor's degree without further specification, or a bachelor's degree in business administration, are sufficient for entry into the position, this claim still is inadequate to establish that the proposed position qualifies as a specialty occupation. Again, 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. There must be a close correlation between the required specialized studies and the position; thus, the mere requirement of a general degree, or a degree with a generalized title such as business administration, without further specification, does not establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general education, or to obtain what an employer perceives to be a higher caliber employee, also does not establish eligibility."). Although a general-purpose bachelor's degree, such as a degree in business administration, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a finding that a particular position qualifies for classification as a specialty occupation.3 Royal Siam Corp. v. Cherto.fj, 484 F.3d 139, 147 (1st Cir. 2007).4

2 We recognize the Handbook as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses. The Handbook, which is available in printed form, may also be accessed online at http://www.bls.gov/oco/. All our references to the Handbook are to the 2016- 17 edition available online. 3 A general degree requirement does not necessarily preclude a proffered position from qualifying as a specialty occupation. For example, 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 may, in certain instances, qualify the proffered position as a specialty occupation. In either case, it must be demonstrated 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. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).

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The Petitioner cites to Residential Finance Corp. v. USCIS, 839 F. Supp. 2d 985 (S.D. Ohio 2012) and Tapis Int'l v. Immigration and Naturalization Service, 94 F. Supp. 2d 172 (D. Mass. 2000) for the proposition that "[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge." The Petitioner thus asserts that "because there is no such thing as a degree that is specifically tailored to fit the job description of the Manager of Investments/Real Estate, [the Petitioner] has indicated that an individual who possesses a Bachelor's Degree in Political Science/International Relations would possess the suitable training, skills, and knowledge to be able to perform the required job duties."

The Petitioner's reliance upon these cases is misplaced. While we agree with the general proposition cited above, we do not agree that it applies to the situation at hand. The issue here is that the Petitioner has not consistently established what its minimum educational requirement is, and how its entry requirement- whether it is a bachelor's degree in political science, international relations, or marketing, or merely a general degree such as business administration - is directly and closely related to the position in question. As discussed above, the Petitioner has not adequately explained its changing requirements for the proffered position during these proceedings. For these reasons, the petition will be denied and the appeal dismissed.

Second, we find that the evidence of record is insufficient to establish the substantive nature of the proffered position.

The job descriptions lack sufficient detail and concrete explanation to establish the substantive nature of the work that would be performed within the context of the Petitioner's particular business operations. For instance, the Petitioner stated that 40% of the Beneficiary's duties "involves the management of all of Petitioner's European-based investments," while 20% of his duties include "the day to day management and reporting on all real estate projects." The Petitioner also stated that the Beneficiary

It is also important to note that a position may not qualify as a specialty occupation based solely on either a preference for certain qualifications for the position or the claimed requirements of a petitioner. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). Instead, the record must establish that the performance of the duties of the proffered position requires both the theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent, as the minimum for entry into the occupation. See section 214(i)( 1) of the Act; 8 C.F.R. § 214.2(h)( 4)(ii) (defining the term "specialty occupation"). 4 Specifically, the United States Court of Appeals for the First Circuit explained in Royal Siam that:

The 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 justify the granting of a petition for an H-1 B specialty occupation visa. See, e.g., Tapis lnt 'I v. INS, 94 F.Supp.2d 172, 175-76 (D. Mass. 2000); Shanti, 36 F. Supp. 2d at 1164-66; cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 ([Comm'r] 1988) (providing frequently 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.

I d.

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will spend 10% of his time on the "reporting and administration" of the Petitioner's "global portfolio."5

The Petitioner has not sufficiently delineated what specific tasks the Beneficiary will perform (e.g., what is meant by the vague terms "management," "handle all areas of oversight, review and supervision," and "reporting and administration") and the percentages of time spent on each distinct duty (e.g., how the 40% of time spent on "all of the Petitioner's European-based investments" is further broken down into distinct duties such as property management, financial reporting, and contract negotiation).

Notably, many of the Beneficiary's job duties include supervisory and managerial duties, including "staff supervision for projects located in the United States and the Czech Republic." However, the Petitioner has not further explained what "staff' (e.g., their names, titles, and position duties) the Beneficiary will supervise, or what specific "projects" the Beneficiary will manage in the United States and abroad. We note that the Petitioner claimed on the Form I-129 to have only two employees, but has not identified who these two employees are and what their duties are within the company.6 The lack of such details regarding the Petitioner's business operations further precludes an understanding ofthe substantive nature of the proffered position.

Furthermore, some of the proffered duties are so broadly described that they could reasonably encompass duties that do not involve specialty occupation work at all. To illustrate, the Petitioner stated that the Beneficiary "will be responsible for accounting/bookkeeping." The Petitioner also stated that the Beneficiary "coordinates" the quarterly international business trips and meetings. However, these duties - as so generally described - could potentially encompass non-qualifying duties, such as routine bookkeeping and administrative duties, which constitute a substantive portion of the proffered duties. While no provision in the law for specialty occupations permits the performance of non-qualifying duties, we will view the performance of duties that are incidental to the primary duties of the proffered position as acceptable when they are unpredictable, intermittent, and of a minor nature. 7 Anything beyond such incidental duties, however, e.g. , predictable, recurring, and substantive job responsibilities, must be specialty occupation duties or the proffered position as a whole cannot be approved as a specialty occupation.

5 The Director found that the job duties regarding administration and management of the Petitioner 's "global portfolio," including ownership of a and part ownership in a winery, constituted a material change in the position. We will withdraw this finding. Although vague, the Petitioner's initial letter, dated July 18, 2014, did state that the company's "day to day business dealings include domestic . .. investments." The Petitioner additionally stated that it "also is part owner of a winery located in the Czech Republic ." The Petitioner then stated that the Beneficiary "will handle all areas of oversight, review and supervision .. . for both Czech Republic and US projects." Because of the overly broad nature of the Petitioner's descriptions, we cannot find that the above job duties relating to the "global portfolio" and winery were inconsistent, and thus, we do not find that they constitute material changes. 6 It is not apparent whether these two employees include the Beneficiary, who has been working for the Petitioner in H-1 B status for several years. We also note that the Petitioner stated in its July 18, 2014, letter that the Beneficiary "will travel with other employees of [the Petitioner] (plural emphasized)," therefore implying that the Petitioner has more than two employees. 7 The two definitions of "incidental" in Webster 's New College Dictionary are " I. Occuning or apt to occur as an unpredictable or minor concomitant . . . [and] 2. Of a minor, casual, or subordinate nature .... " Incidental, Webster's New College Dictionary (3rd ed. 2008).

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Some of the proffered job duties also do not reasonably fall within the scope of duties for the financial analyst occupation chosen here. Neither the Handbook nor the DOL's Occupational Information Network (O*NET) indicates that financial analysts perform duties related to accounting, bookkeeping, property management, travel coordination, marketing, and "partak[ing] in the day to day operations of three (3) multinational businesses," for example. 8 See U.S. Dept. of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Financial Analysts," http:/ /www.bls.gov/ooh/business-and-financial/print/financial-analysts.htm (last visited Mar. 8, 2016); O*NET Online Details Report for "13-2051, Financial Analysts" http://www.onetonline.org/link/details/13-2051.00 (last visited Mar. 8, 2016).

While the Handbook states that portfolio managers, a type of financial analyst, "are responsible for the overall performance of the portfolio," the Handbook does not indicate that they actually manage the "day to day operations" of the investments under the portfolio. See U.S. Dept. of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., "Financial Analysts," http://www. bls.gov/ ooh/business-and-financial/print/financial-analysts.htm (last visited Mar. 8, 20 16). Nor has the Petitioner stated that the Beneficiary actually selects the mix of investments under the company's portfolio, which he will then manage. See id. O*NET, similarly contains no references to managerial-type duties for financial analysts. See O*NET Online Details Report for "13-2051, Financial Analysts," http://www.onetonline.org/link/details/13-2051.00 (last visited Mar. 8, 2016).

Moreover, some of the duties of the proffered position do not appear consistent with the Level I, entry-level, wage rate selected here. Here, the Petitioner has repeatedly emphasized the "complex," "sophisticated," and "specialized" nature of the proffered job duties. 9 In accordance with the relevant DOL explanatory information on wage levels, however, a Level I wage rate indicates that the proffered position is a comparatively low, entry-level position relative to others within the occupation. It also indicates that the Beneficiary is only required to have a basic understanding of the occupation, and will perform routine tasks that require limited, if any, exercise of judgment. 10

8 We also recognize O*NET as an authoritative source on the duties of the wide variety of occupations that it addresses. 9 The issue here is that the Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree in a specific specialty or its equivalent. That is, a position's wage level designation may be a consideration but is not a substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) ofthe Act. 10 A Levell wage rate is described as follows:

Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the

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The Petitioner's designation of the proffered pos1t10n as a Level I, entry-level pos1t10n thus undermines the credibility of any claim as to the proffered position or the duties comprising it as being particularly complex, specialized, or unique. Again, "it is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." Matter ofHo, 19 I&N Dec. at 591.

Overall, we find the evidence of record insufficient to establish the substantive nature of the work the Beneficiary will perform. We are therefore precluded from 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 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.

Accordingly, as the Petitioner has not established that it has satisfied any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A), it cannot be found that the proffered position qualifies for classification as a specialty occupation. The appeal will be dismissed and the petition denied for this additional reason.

IV. BENEFICIARY QUALIFICATIONS

The Director also found that the Beneficiary would not be qualified to perform the duties of the proffered position if the job had been determined to be a specialty occupation. However, we do not need to examine the issue of the Beneficiary's qualifications, because the Petitioner has not provided sufficient evidence to demonstrate that the proffered position is a specialty occupation. In other words, the Beneficiary's credentials to perform a particular job are relevant only when the job is found to be a specialty occupation.

As discussed in this decision, the Petitioner did not submit sufficient, consistent evidence regarding the proffered position to determine whether it requires a baccalaureate or higher degree in a specific specialty or its equivalent. Absent this determination that a baccalaureate or higher degree in a specific specialty or its equivalent is required to perform the duties of the proffered position, it also cannot be determined whether the Beneficiary possesses that degree or its equivalent.

employer's methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

See 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

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V. LCA

Beyond the decision of the Director, we find that the Petitioner did not submit an LCA that corresponds to the petition. On the LCA, the Petitioner specified that the occupational classification for the proffered position corresponds to SOC (O*NET/OES) Code and Title 13-2051, "Financial Analysts," at a Level I wage rate. By completing and submitting the LCA, and by signing the LCA, the Petitioner attested that the information contained in the LCA was true and accurate.

As discussed above, the Petitioner has not sufficiently explained how the proffered duties correspond to a Level I, entry-level financial analyst position. 11 We hereby incorporate our earlier discussion on the matter. The evidence of record is insufficient to establish whether the Petitioner has chosen the most appropriate and relevant O*NET occupational code classification. 12

Nevertheless, even assuming arguendo that the financial analysts occupational classification is appropriate, we still could not find that the submitted LCA supports and corresponds to the proffered position. More specifically, we find that the Petitioner listed an incorrect prevailing wage on the LCA, and has not offered a wage equal to or exceeding the wage required by law. See Section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A) (the Petitioner must offer wages that are at least "the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question" or "the prevailing wage level for the occupational classification in the area of employment, whichever is greater.")

11 While the Petitioner explained how the duties of the proffered position "exceed[] the scope and competence of a typical property manager," the Petitioner has not accounted some of the other proffered duties, such as the accounting, marketing, and managerial duties, that appear outside the scope ofthe financial analyst occupational classification 12 With respect to the LCA, DOL provides clear guidance for selecting the most appropriate, relevant O*NET occupational code classification. The "Prevailing Wage Determination Policy Guidance" states the following:

In determining the nature of the job offer, the first order is to review the requirements of the employer's job offer and determine the appropriate occupational classification. The O*NET description that corresponds to the employer's job offer shaii be used to identify the appropriate occupational classification .... If the employer's job opportunity has worker requirements described in a combination ofO*NET occupations, the NPWHC should default directly to the relevant O*NET­SOC occupational code for the highest paying occupation. For example, if the employer's job offer is for an engineer-pilot, the NPWHC shall use the education, skill and experience levels for the higher paying occupation when making the wage level determination.

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 _l I_ 2009 .pdf

In this case, some of the job duties appear to correspond to a combination of other O*NET occupations. However, without sufficient information regarding these other occupations and their prevailing wages, we cannot determine if the financial analysts occupational classification represents the highest paying occupation, and thus, the most appropriate and relevant classification.

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Here, the LCA listed the Beneficiary's sole place of employment in Connecticut, which is located in The LCA lists the prevailing wage as well as the proffered wage as $61,006 per year, and listed the prevailing wage source as the "2014 OFLC Online Data Center." The LCA was certified on July 15, 2014.

According to the OFLC Online Data Center, the Level I prevailing wage for financial analysts in the CT" MSA, corresponding to the

locality, for the period 7/2014- 6/2015, is $62,317 annually. For more information regarding the wages for "Financial Analysts" - SOC (ONET/OES Code) 13-2051, in the

CT" MSA for the period 7/2014 6/2015, see http:/ /flcdatacenter.com/OesQuickResults.aspx?code= 13-2051 &area= &year= 15&source= 1 (last visited Mar. 8, 2016). The Petitioner incorrectly stated on the LCA that the prevailing wage is $61 ,006 annually and attested on the Form I-129 and LCA that it will pay that wage to the Beneficiary which is $1,311 less than the required wage. 13

While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department responsible for determining whether the content of an LCA filed for a particular Form I-129 actually supports that petition. The regulations state, in pertinent part:

For H-1B visas ... DHS accepts the employer's petition (DHS Form I-129) with the DOL certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the [LCA] is a specialty occupation or whether the individual is a fashion model of distinguished merit and ability, and whether the qualifications of the nonimmigrant meet the statutory requirements of H-1 B visa classification.

20 C.F.R. § 655.705(b) (emphasis added).

The regulation at 20 C.F.R. § 655.705(b) requires that USCIS ensure that an LCA actually supp01is the H-lB petition filed on behalf of the Beneficiary. See also 20 C.F.R. § 655.705(c) (stating, in pertinent part, that by completing, submitting, and signing the LCA, the employer makes certain representations and agrees to several attestations regarding its wage responsibilities). Here, the Petitioner has not submitted a certified LCA that corresponds to the proffered position. Therefore, the petition cannot be approved for this additional reason.

13 Both the the

CT and CT MSA covers '

14

CT MSAs cover parts of however, only

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VI. PROPERLY COMPLETED PETITION

Finally, also beyond the Director's decision, we find that the Form I-129 was not properly signed by the Petitioner. The Form I-129 instructions, which are incorporated into the regulations, state that the petition must be properly signed. See 8 C.F.R. § 103.2(a)(1). The instructions further indicate that a petition that is not properly signed or completed may be rejected or denied. See 8 C.F.R. § 103.2(a)(7)(i); 8 C.F.R. § 103.2(b)(l).

On page 12 of the Form I-129 Supplement H, the Petitioner did not sign the "Statement for H-1B specialty occupations and U.S. Department of Defense projects" certifying that it would be liable for the Beneficiary's reasonable costs of return transportation if he is dismissed from employment prior to the expiration of the period of authorized stay. See 214(c)(5) of the Act; 8 C.F.R. § 214.2(h)( 4 )(iii)(E). Although the Petitioner stated in its letter, dated July 18, 2014, that it "will pay the reasonable costs of return transportation for [the Beneficiary] to his last place of residence in the event of his dismissal prior to the end of the period of authorized stay," we cannot accept this statement in lieu of the required signature on the form. We note that the integrity of the immigration process depends on the employer properly signing the official immigration forms.

As the petition was not properly signed and completed, the petition is further precluded from approval. Thus, for this reason as well, the petition must be denied.

VII. CONCLUSION

We find that the evidence of record does not establish that the proffered position qualifies as a specialty occupation. Beyond the decision of the Director, we find that the Form I-129 was not supported by a corresponding LCA and the Form I-129 was not properly completed.

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).

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 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofS-M- LLC, ID# 16117 (AAO Apr. 1, 2016)

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