dismissed H-1B Case: Computer Consulting

(b)(6)
JUN 0 3 2015 
DATE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service. 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www .uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. INTRODUCTION 
On the Form I -129 visa petition, the petitioner describes itself as a -employee computer 
consulting company established in In order to employ the beneficiary in what it designates 
as a "Senior Consultant" position at a salary of $76,357 per year/ the petitioner seeks to classify 
him as a nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record did not establish that the 
proffered position qualifies as a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's 
response to the RFE; (4) the director's letter denying the petition; and (5) Forms I-290B, Notice of 
Appeal or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not 
overcome the director's basis for denying this petition. We will also address an additional, 
independent ground, not identified by the director's decision, that we find also precludes approval 
of this petition. 2 Specifically, beyond the decision of the director, the evidence in record of 
proceeding does not establish that the petitioner would have an employer-employee relationship 
with the beneficiary. Accordingly, the appeal will be dismissed, and the petition will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purview, we follow the preponderance of the evidence standard as specified in the controlling 
precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), unless the law 
specifically provides that a different standard applies. In pertinent part, that decision states the 
following: 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was 
certified for use with a job prospect within the "Software Developers, Application" occupational 
classification, 
SOC (O*NET/OES) Code 15-1132, and a Level II (qualified) wage level. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of 
evidence that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits 
relevant, probative, and credible evidence that leads the director to believe that the 
claim is "more likely than not" or "probably" true, the applicant or petitioner has 
satisfied the standard of proof. See INS v. Cardoia-Foncesca, 480 U.S. 421, 431 
(1987) (discussing "more likely than not" as a greater than 50% chance of an 
occurrence taking place). If the director can articulate a material doubt, it is 
appropriate for the director to either request additional evidence or, if that doubt 
leads the director to believe that the claim is probably not true, deny the application 
or petition. 
/d. at 375-76. 
Again, we conduct our review of service center decisions on a de novo basis. See Soltane v. DOl, 
381 F.3d at 145. In doing so, we apply the preponderance of the evidence standard as outlined in 
Matter of Chawathe. Upon our review of the present matter pursuant to that standard, however, 
we find that the evidence in the record of proceeding does not support counsel's contentions that 
the evidence of record requires that the petition at issue be approved. Applying the preponderance 
of the evidence standard as stated in Matter of Chawathe, we find that the director's determination 
that the evidence of record does not establish that the proffered position is a specialty occupation 
was correct. Upon our review of the entire record of proceeding, and with close attention and due 
regard to all of the evidence, separately and in the aggregate, submitted in support of this petition, 
we find that the evidence of record does not establish that the claim of a proffer of a specialty 
occupation position is "more likely than not" or "probably" true. In other words, as the evidentiary 
analysis of this decision will reflect, the petitioner has not submitted relevant, probative, and 
credible evidence that leads us to believe that the petitioner's claim that the proffered position 
qualifies as a specialty occupation is "more likely than not" or "probably" true. 
·· ·· ··· ·-· -···---···· --·---- ------
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III. SPECIALTY OCCUPATION 
To meet the petitioner's burden of proof in establishing the proffered position as a specialty 
occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U. S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.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 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F. R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is n01mally 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. 
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As a threshold issue, it is noted that 8 C.F. R. § 214. 2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.F. R. § 214. 2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the 
statute as a whole. 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. Federal Sav. and Loan Ins. Corp., 489 
U. S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 
C.F. R. § 214. 2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily 
sufficient to meet the statutory and regulatory definition of specialty occupation. To otherwise 
interpret this section as stating the necessary and sufficient conditions for meeting the definition of 
specialty occupation would result in particular positions meeting a condition under 8 C.F.R. 
§ 214. 2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
F.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C. F. R. § 214. 2(h)(4)(iii)(A) must therefore 
be read as providing supplemental criteria that must be met in accordance with, and not as 
alternatives to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F. R. § 
214. 2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
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, users regularly approves H-IB petitions for qualified aliens 
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, USCI S 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 alien, 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 nor 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. 
We note that, as recognized by the court in Defensor, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Afeissner, 201 F.3d at 387-388. The court held that the former Immigration and 
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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. at 384. 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. 
The petitioner states that the beneficiary will work at the end-client 
South Dakota location, and not at its place of business in Illinois. 
In a letter dated March 18, 2014, of CNA states that the beneficiary will be 
assigned to "various projects" pursuant to a Master Outsourcing Services Agreement (MOSA) 
executed between CNA and the petitioner, and that he will perform the following duties: 
• Project Management 
• Application System Design 
• Application System Implementation 
• Application Test Planning 
We first note that the record of proceeding does not contain the referenced MO SA. Furthermore, 
the end-client describes the proposed duties in terms of generalized and generic functions that fail 
to convey sufficient substantive information to establish the relative complexity, uniqueness 
and/or specialization of the proffered position or its duties. For example, the duties as stated do 
not provide details for the project that the beneficiary would manage. Similarly, the above duties 
do not provide details regarding the beneficiary's specific role in system design, implementation, 
and test planning. This type of generalized description may be appropriate when defining the 
range of duties that may be performed within an occupational category, but it does not adequately 
convey the substantive work that the beneficiary will perform within the end-client's business 
. 4 
operatwns. 
The duties provided by the end-client do not establish the substantive nature of the work to be 
performed by the ben eficiar y, which therefore 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 
3 The end-client abbreviates itself as CNA. 
4 We acknowledge that the petitioner provided a list of duties for the proffered position. However, as stated 
in Defensor, the petitioner-provided job duties and alleged requirements to perform those duties are 
irrelevant to a specialty occupation determination. See Defensor v. Meissner, 20 I F.3d at 387-388. 
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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. 5 
Accordingly, as the evidence of record did not establish 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 as a specialty 
occupation. For this reason, the appeal will be dismissed and the petition denied. 
IV. EMP LOYER-EMP LOYEE RE LATIONSHIP 
Beyond the director's decision, we will briefly discuss whether the petitioner has established that it 
meets the regulatory definition of a "United States employer" as that term is defined at 8 C.F.R . 
§ 214.2(h)( 4)(ii). We reviewed the record of proceeding to determine whether the petitioner has 
established that it will have "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." I d. 
More specifically, section 101(a)(1 5)(H)(i)(b) of the Act defines an H-lB nonimmigrant m 
pertinent part as an alien: 
subject to section 212(j)(2), who is coming temporarily to the United States to 
perform services . . . in a specialty occupation described in section 
214(i)(l) .. . , who meets the requirements for the occupation specified in section 
214(i)( 2) .. . , and with respect to whom the Secretary of Labor determines and 
certifies to the [Secretary of Homeland Security] that the intending employer has 
filed with the Secretary [of Labor] an application under section 212(n)(l) .. .. 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214. 2(h)(4)(ii) as follows (emphasis added): 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) 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 
5 In its RFE response letter, which the petitioner resubmitted on appeal, the petitioner refers to evaluations 
performed by professors We note that the record does not contain 
these referenced evaluations. In making a determination of statutory eligibility, USCIS is limited to the 
information contained in the record of proceeding. See 8 C.F .R. § 103 .2(b )(16)(ii). Furthermore, the 
petitioner quotes sections from these evaluations referring to the proffered position as a "Senior Consultant 
(Business Analyst)" position, which appears to differ from the proffered position. 
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NON-PRECEDENT DECISION 
(3) Has an Internal Revenue Service Tax identification number. 
8 C.F. R. § 214.2(h)( 4)(ii); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The United States Supreme Court determined that where federal law fails to clearly 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 Mutual 
Ins. Co. v. Darden, 503 U. S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for 
Creative Non-Violence v. Reid, 490 U. S. 730 (1989)). 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. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U. S. at 
751-752); see also Clackamas Gastroenter ology Associates, P. C. v. Wells, 538 U. S. 440, 445 
(2003) (hereinafter "Clack amas"). As the common-law test contains "no shorthand formula or 
magic phrase that can be applied to find the answer, ... all of the incidents of the relationship 
must be assessed and weighed with no one factor being decisive. " Darden, 503 U. S. at 324 
(quoting NLRB v. United Ins. Co. of America, 390 U. S. 25 4, 258 (1968)). 
As discussed earlier, the petitioner stated that the beneficiary will work at the end-client's 
, South Dakota location. 6 However, the redacted statement of work that the petitioner 
submitted does not outline in detail the nature and scope of the beneficiary's employment at the 
end-client's location and the record does not contain the "Master Outsourcing Services 
Agreement" to which the statement of work was attached. Nor do CNA's letters provide this 
6 According to the March 18, 2014 letter from CNA, the beneficiary also wi II perform duties at 
However, the record does not contain an LCA certified for the 
location. While CNA's August 4, 2014 letter naming only the South Dakota work address is 
acknowledged, the inconsistency is not addressed. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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information. Therefore, the key element in this matter, which is who exercises control over the 
beneficiary, has not been substantiated. While the record contains multiple assertions regarding 
the petitioner's right to control the work of the beneficiary, simply going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffzci, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing A1atter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). The record contains 
insufficient evidence to demonstrate that the requisite employer-employee relationship exists 
between the petitioner and the beneficiary. Therefore, the appeal is dismissed for this additional 
reason. 
V. CONCLUSION AND ORDE R 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F. 3d at 145. 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, aff'd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm'n, 351 F. 3d 1177, 1183 (D.C. Cir. 
2003) ("When an agency offers multiple grounds for a decision, we will affirm the agency so long 
as any one of the grounds is valid, unless it is demonstrated that the agency would not have acted 
on that basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons. 7 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 o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
7 As the grounds discussed above are dispositive of the petitioner 's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding with regard to the approval of the H-1 B petition.