dismissed H-1B Case: Business Intelligence

U.S. Citizenship 
and Immigration 
Services 
In Re: 6640235 
Appeal of California Service Center Decision 
Form I-129, Petition for a Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 2020 
The Petitioner , a software solutions company , seeks to temporarily employ the Beneficiary as a 
"business intelligence analyst" under the H-IB nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the specific 
specialty ( or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that ( 1) the Petitioner will have an employer-employee relationship with the 
Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Upon 
de nova review, we will dismiss the appeal. 1 
I. SPECIAL TY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § l 184(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. 
1 We follow the preponderance of the evidence standard as specified in Matter of Chawathe, 25 l&N Dec. 369, 375-76 
(AAO 2010). 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a 
non-exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered 
position must meet one of the following criteria to qualify as a specialty occupation: 
( I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We construe the term "degree" to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proposed position. See Royal 
Siam Corp. v. Chertojf, 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. 
B. Analysis 
Upon review of the record in its totality, we conclude that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation because the record lacks sufficient evidence of 
the services that the Beneficiary will perform for the end-client. 2 
2 The Petitioner submitted documentation to suppmt the H-1 B petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
2 
The Petitioner indicated on the petition and on the certified labor condition application (LCA) 3 that 
the Beneficiary will work as a "business intelligence analyst" for I I ( end-client) in 
I I Georgia for the requested period of employment from October 2018 to September 2021. 
In support of the contractual relationship, the Petitioner submitted an agreement entitled "Master IS 
and Temporary Staffing Services Agreement" executed in September 2009 by the end-client and 
.__~,,....-------~---......,,...___,., an amendment dated November 17, 2009 revising the hourly 
rates, and a confidential disclosure agreement between the parties. 4 The Petitioner stated that it bought 
I l which makes it the successor-in-interest of1 I However, the record contains insufficient 
documentary evidence demonstrating the claimed relationship between the Petitioner and I I 
Moreover, the information contained in the temporary staffing services agreement is limited in scope 
and does not adequately establish the services to be provided by the Beneficiary such as duties or 
educational requirements for the position. Rather, the agreement states that the "Supplier" will provide 
services described in a statement of work (SOW) and "will supply such worker to [the end-client] with 
qualifications set out in a s
1
w (~Ass~gned Employees')." The Petitioner submitted two SOWs5 
signed by the end-client and However, the terms of the SOW s do not extend beyond 
December 31, 2010. The SOWs describe the "major responsibilities" briefly, but do not state the 
requirements for the positions. For example, the November 2009 SOW states that the resource needed 
is "Level II-Load Runner scripting resource" and indicates "NIA" for "Additional Skills Required." 
The December 2009 SOW also describes the major responsibilities briefly and identifies the resource 
needed as "Cognos BI, Level II," but does not indicate the skills needed for the position. Therefore, 
the temporary staffing services agreement (including its amendment and the confidential disclosure 
agreement) and the SOWs signed by the end-client andl O I have little probative weight towards 
establishing the actual work to be performed by the Beneficiary for the end-client for any specific 
period or location. 
The Petitioner also submitted a master services agreement (MSA) that it executed withl I 
~-------_.on December 12, 2018. The Petitioner states thatO bought the end-client's 
animal healthcare business, thus making Othe successor-in-interest of the end-client. Notably, the 
MSA was executed after the May 2018 filing of the petition. 7 The MSA states that D and [ the 
Petitioner] desire to enter into this Agreement to provide a legal framework for future agreements ... 
pursuant to which [the Petitioner] ... will provide Services that are described in Statements of Work." 
3 A petitioner submits the LCA to the U.S. Department of Labor to demonstrate that it will pay an H-lB worker the higher 
of either the prevailing wage for the occupational classification in the area of employment or the actual wage paid by the 
employer to other employees with similar duties, experience, and qualifications. Section 212(n)(l) of the Act; 20 C.F.R. 
§ 655.731(a). 
4 The amendment lists the temporary staffing resource type and lists onshore and offshore rates, but does not describe the 
positions in detail or provide information regarding their requirements. 
5 The third SOW submitted appears to be a duplicate copy of the SOW dated December 15, 2009. 
6 The SOW dated November 19, 2009 indicates that the term of SOW is "November 10, 2009 through and including 
February 11, 2009." The SOW dated December 15, 2009 indicates that the term of SOW "shall commence as of the 
Effective Date upon signature by both parties and shall remain in full force and effect ... for through and including 
December 31, 2010." 
7 The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be 
eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date 
after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Co1p., 17 l&N 
Dec. 248, 249 (Reg'l Comm'r 1978). 
3 
The MSA goes on to say "[a] Statement of Work shall define the scope of Services to be performed 
by [the Petitioner]" and that "[ n ]o obligation for services or costs shall be incurred by either Party 
hereto unless and until the Statement(s) have been executed in accordance with this Agreement." The 
Petitioner submitted five SOWs executed pursuant to the MSA signed by the parties in December 
2018. Notably, the SOWs cover the duration from January 1, 2019 to December 31, 2019. The 
Petitioner does not indicate which SOW applies to the proffered position. While the SOWs indicate 
the number of resources needed, they do not identify anyone by name or specify a degree requirement 
the assigned individual must have. Rather, the SOWs state that "[t]he application support team has to 
have the skills as described in the Service Principles for Application Support (attachment l)." 
However, the record does not contain the referenced attachment and the Petitioner does not explain 
the reason for not submitting it. Therefore, we cannot determine whethe0s requirements meet the 
requirements of a specialty occupation. Moreover, under the "Service Activities" subheading, the 
SOWs provide a general description of the "activities that [the Petitioner] has to execute." However, 
the section also indicates that "these activities are just specific examples of work for this application" 
and that the Petitioner "also has to provide the Services described in the Service Principles for 
Application Support (attachment l)." As noted above, the Petitioner did not submit the referenced 
attachment. Therefore we cannot evaluate and determine the foll scope of the duties and the position 
requirements associated with these SOWs. 8 
The record contains a letter from I I in which it confirms that it is the successor-in-interest of 
the end-client; 9 the Petitioner to provide "certain IT services, including the design, development, 
documentation and deployment of these services;" it "anticipates continuing to use [the Petitioner's] 
services during the next year;" 10 and it requires the services to be provided at its offices located in 
I I Georgia. However, the letter does not provide sufficient information regarding the 
end-client's project or the services to be provided by the Beneficiary. As recognized in Defensor, 201 
F.3d at 387-88, it is necessary for the end-client to provide sufficient information regarding the 
proposed job duties to be performed at its location(s) in order to properly ascertain the minimum 
educational requirements necessary to perform those duties. We must examine the ultimate 
employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor, 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. 
Also critical is the lack of evidence directly from the end-client regarding whatever academic 
requirement it has for the proffered positon. Although the Petitioner claimed that the position requires 
a bachelor's degree or the equivalent in electronics engineering, computer science, or a related field, 
8 The Petitioner olso submitted service 2?reements and SOWs it executed with other clients such as 
I i" i~. -----~• _,,.....,.)' and '.__ _________ _____," that are not the end-client identified 
by the Petitioner. However, the Petitioner did not explain the relevance of these agreements and SOWs to the proffered 
position at the end-client's location. Therefore, these agreements and SOWs have little probative weight towards 
establishing the actual work to be performed by the Beneficiary for the end-client for anv specific period or location. 
9 The letter also contains the I llogo and includes the statement of 'i,._ _____ ~------' 
I O j, at the bottom right comer of the letter. 
10 The letter is dated 30 March 2018. 
4 
there is insufficient evidence that the end-client imposes the same requirement. A preference for 
high-caliber employees is not sufficient to establish a position as a specialty occupation. As discussed 
above, because the Beneficiary will be directly working for the end-client at the end-client's place of 
business, the end-client job requirements are critical in determining whether the position qualifies as 
a specialty occupation. See generally Defensor, 201 F. 3d 384. Here, the end-client did not indicate 
a degree requirement in a specific specialty for the proffered position. 
We reviewed the letter submitted b~ ] a professor atl !University, and find 
his opinion of the proffered position conclusory without sufficient analysis of the position at the 
end-client. According to I I the proffered position requires a bachelor's level degree in 
computer science, electronics engineer, or a related area. I I stated that he reached his 
conclusions based on his "review of all documentation provided to [him] by [the Petitioner], [his] 
knowledge of the industry through firsthand field experience and professional consulting activities, 
[and his] careful following of current trends in [his] academic field, .... " However,! ldid 
not discuss the proffered position at the end-client. The absence of any substantive discussion of the 
duties specific to the end-client's project raises doubts about his level of familiarity with the proffered 
position and also undermines his conclusion regarding the degree requirement of the position. 
Though relevant, the information professor I I references from Department of Labor's 
Occupational Information Network (O*NET) summary report for "Business Intelligence Analysts" 
(SOC 15-1199.08) does not establish that a bachelor's degree in a spec[fic specialty, or the equivalent, 
is normally required. The O*NET Summary Report provides general information regarding the 
occupation, but it does not support a conclusion that the proffered position requires a bachelor's degree 
in a specific specialty, or the equivalent. Instead, O*NET assigns these positions a "Job Zone Four" 
rating, which states "most of these occupations require a four-year bachelor's degree, but some do 
not." Moreover, the Job Zone Four designation does not indicate that any academic credentials for 
Job Zone Four occupations must be directly related to the duties performed. In addition, the 
specialized vocational preparation (SVP) rating designates this occupation as 7 < 8. An SVP rating of 
7 to less than ("<") 8 indicates that the occupation requires "over 2 years up to and including 4 years" 
of training. While the SVP rating indicates the total number of years of vocational preparation required 
for a particular position, it is important to note that it does not describe how those years are to be 
divided among training, experience, and formal education. The SVP rating also does not specify the 
particular type of degree, if any, that a position would require. 11 For all of these reasons, O*NET does 
not establish the proffered position as a specialty occupation. 
Therefore, the letter from professor! I is insufficient to support the Petitioner's assertion that the 
proffered position qualifies as a specialty occupation. As a matter of discretion, we may use opinion 
statements submitted by the Petitioner as advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 
(Comm'r 1988). However, we will reject an opinion or give it less weight if it is not in accord with 
other information in the record or if it is in any way questionable. Id. We are ultimately responsible 
for making the final determination regarding an individual's eligibility for the benefit sought; the 
submission of expert opinion letters is not presumptive evidence of eligibility. Id.; see also Matter of 
V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008) ("[E]xpert opinion testimony, while undoubtedly a form 
11 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
5 
of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will assist 
the trier of fact to understand the evidence or to determine a fact in issue."'). 
Given the insufficient evidence from the end-client regarding the position and its requirements, we 
conclude that the Petitioner has not established the substantive nature of the work to be performed by 
the Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 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. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 8 C.F.R. § 214.2(h)(2)(i)(A). See section 101(a)(15)(H)(i)(b) of the Immigration and 
Nationality Act (the Act) (referring to the "intending employer"). According to the regulation at 
8 C.F.R. § 214.2(h)(4)(ii), the term "United States employer" means a person, firm, corporation, 
contractor, organization, or other association in the United States which: 
(I) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees under this 
part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise 
control the work of any such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that, where federal law does 
not helpfully define the term "employee," courts should conclude that the term was "intended to 
describe the conventional master-servant relationship as understood by common-law agency 
doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Thus, to interpret these terms, U.S. Citizenship 
6 
and Immigration Services will apply common law agency principles which focus on the touchstone of 
control. 
The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party has 
the right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
Darden, 503 U.S. 318, 322-23. 12 See Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 
440,445 (2003) (quoting Darden). See also Defensor, 201 F.3d at 388 (even though a medical staffing 
agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" 
because they ultimately hire, pay, fire, supervise, or otherwise control the work of the H-lB beneficiaries). 
We will assess and weigh all of the incidents of the relationship, with no one factor being decisive. 
B. Analysis 
Applying the Darden and Clackamas factors to this matter, we conclude that the Petitioner has not 
established that it will be a "United States employer" having an "employer-employee relationship" 
with the Beneficiary as an H-lB temporary "employee." Specifically, we conclude that the Petitioner 
has not submitted sufficient documentation regarding relevant aspects of the Beneficiary's 
employment. 
The Petitioner asserts that it will have employer-employee relationship with the Beneficiary while she 
performs her duties at the end-client's location in Georgia. As discussed above, the record does not 
contain sufficient information from the end-client to outline in detail the nature and scope of the 
Beneficiary's employment at the end-client's location. 
On appeal, the Petitioner asserts that paying the Beneficiary's salary, claiming her for tax purposes, 
deducting federal and state income taxes, Medicare tax, medical and dental insurance premiums "alone 
are sufficiently dispositive to show that an employer-employee relationship exists between the 
Petitioner and the Beneficiary." 13 We note that administrative functions such as social security, 
12 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it 
exists or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for 
by the common-law test. See Darden, 503 U.S. at 323-24. 
13 The record contains a letter from .__ ______ __, stating that it has entered into a "Client Services Agreement" 
with the Petitioner in Janua1y 2015 to provide services in "human resource matters, employee benefits, payroll and 
worker's compensation functions through use of a 'co-employment' relationship." It continues to state "[e]mployees of 
7 
worker's compensation, and unemployment insurance contributions, as well as federal and state 
income tax withholdings, and providing other employment benefits are relevant factors in determining 
who will control a beneficiary. Such factors may appear to satisfy a cursory review that a petitioning 
entity might be an individual's employer; however, these elements are not sufficient to provide a full 
appraisal of the requisite relationship. We must also assess and weigh other factors to determine who 
will be a beneficiary's employer. For example, we must consider who will oversee and direct a 
beneficiary's work, who will provide the instrumentalities and tools, where the work will be located, 
and who has the right or ability to affect the projects to which a beneficiary is assigned, among other 
factors. A petitioner must sufficiently address the relevant factors to enable us to evaluate whether the 
requisite employer-employee relationship will exist between a petitioner and a beneficiary. 
The record in this matter does not include sufficient evidence establishing the Petitioner's role in 
instructing, directing, and supervising the Beneficiary's work. When the entity who will actually be 
using a beneficiary's services is not the Petitioner it is crucial to understand who will direct, supervise, 
and instruct the beneficiary's day-to-day work. This is because the entity directing, supervising, and 
instructing a beneficiary will necessarily influence the type of duties a beneficiary will perform. This 
particular component of the employer-employee relationship is especially significant within the H-1 B 
nonimmigrant classification. Here, the Petitioner has not explained the process or provided evidence 
establishing the manner and means of how it will assign and direct the Beneficiary's day-to-day work. 
It appears more likely than not that the Petitioner, located in California, will not actually be involved 
in the supervision and day-to-day direction of the Beneficiary but that managers at the end-client 
facility in Georgia will actually perform those supervisory and managerial duties. 
Moreover, the statements contained in the SOW s signed by the end-client and the Petitioner raise 
further questions regarding the claimed employer-employee relationship between the Beneficiary and 
the Petitioner. The SOWs state that the end-client will provide "laptops to all support resources located 
onsite" and "[a]ll hardware and OS level support will be managed by [the end-client]." The Petitioner 
does not provide sufficient information regarding what tools and instrumentalities, if any, it will 
provide for the Beneficiary to perform her duties. 
Overall, the evidence provides insufficient insight into how the Petitioner would direct and control the 
Beneficiary's work on a daily basis, which instrumentalities and tools it will provide, and who has the 
right or ability to affect the projects to which the Beneficiary is assigned. The Petitioner's generalized 
assertions regarding control lack specificity and probative detail of the degree of supervision, 
direction, or control that the Beneficiary would receive from the Petitioner. Our review of the H-lB 
petition leads us to conclude that the Petitioner would not operate as the Beneficiary's employer in the 
common-law sense, but that it would instead act as a supplier of personnel to temporarily supplement 
the staff of the end-client who would control the content, means, and methods of those individuals' 
work. 
The record contains insufficient evidence to demonstrate that the requisite employer-employee 
relationship exists between the Petitioner and the Beneficiary. 
[the Petitioner] are technically considered employees of both [the Petitioner] and I ~, However, the record does 
not contain the agreement between the Petitioner andl ( Therefore, we are unable to review the terms and 
conditions of this agreement. 
8 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
9