dismissed H-1B Case: Computer Consulting

(b)(6)
DATE: MAY 0 4 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(H)(15)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110 1(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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 e re uirements. Please do not mail any motions directly to the AAO. 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
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. 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
70-employee "Computer Consulting Services" business established in In order to employ the 
beneficiary in a position it designates as a "Programmer Analyst (Computer Programm er)" position, 
the petitioner seeks to classify her 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. 
§ 110l (a)(15)(H)(i)(b). 
The Director denied the petition determining that the petitioner did not establish (1) the existence of 
an employer-employee relationship between the petitioner and the beneficiary; and (2) that the 
proffered position qualifies for classification as a specialty occupation. On appeal, the petitioner 
asserts that the Director's bases for denial _of the petition were erroneous and contends that the 
petitioner satisfied all evidentiary requirements. 
The record of proceeding before this office includes the following: (1) the petitioner's Form I-129 
and supporting documentation; (2) the Director's request for evidence (RFE), dated June 9, 2014; 
(3) the petitioner's response to the RFE, received July 23, 2014; (4) the denial letter, dated August 
19, 2014; (5) the petitioner's supplemental response to the Director's RFE, received August 29, 
2014; and (6) the Notice of Appeal or Motion (Form I-290B), a brief, additional and re-submitted 
documentation. We reviewed the record in its entirety before issuing our decision. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the Director's grounds for denying this petition. Accordingly, the appeal will be dismissed, and the 
petition will be denied. 
I. EVIDENTIARY STANDARD ON APPEAL 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). As a preliminarily matter, we affirm that, in the exercise of our appellate 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, 
375-376 (AAO 2010). In pertinent part, that decision states the following: 
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. 
* * * 
(b)(6)
Page3 
!d. 
NON-PRECEDENT DECISION 
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. Cardoza-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. 
Upon our review of the present matter pursuant to this standard, however, we find that the evidence 
in the record of proceeding does not support the petitioner'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 determinations in this matter 
were 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 petitioner has not established that its claims are "more likely than not" or 
"probably" true. 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 
claims are "more likely than not" or "probably" true. 
II. FACTUAL AND PROCEDURAL BACKGROUND 
On the Form 1-129, the petitioner indicated that it is seeking the beneficiary's services as a 
"Programmer Analyst (Computer Programmer)" on a full-time basis at a minimum rate of pay of 
"$60,000+" per year. The petitioner submitted the required Labor Condition Application (LCA) 
certified for a job prospect within the occupational classification of "Computer Programm ers" -
SOC (ONET/OES Code) 15-1131, at a Level I wage. The LCA identifies the beneficiary's work 
locations as Missouri; , Missouri; 
and Missouri. 
Preliminarily we note that this petition identifies the petitioner and a third party company, 
, as the business entities involved in providing the computer 
programmer work to the beneficiary pursuant to the instant Form 1-129. The petitioner indicated 
that the beneficiary would be working offsite at the location, in 
Missouri, but that the beneficiary could also work remotely from its headquarters. The petitioner 
requested approval of the H-IB petition for the beneficiary for the period of October 1, 2014 to 
September 11, 2017. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
In its letter in support of the petition, dated April 1, 2014, the petitioner stated that it provides "a 
wide range of software engineering services and consultants ranging from project management, 
system design and development, internet, web services, client/server, mainframes, databases, 
telecommunications, networking and data management." 
In the same letter the petitioner affirmed its desire to employ the beneficiary in a full-time, 
· temporary position of "Computer Programmer." The petitioner also noted the position here 
proffered "is internally titled Programmer Analyst." 1 The petitioner also provided an overview of 
the beneficiary's duties of the position as follows: 
She will be part of a team that is responsible for the development and support of 
software applications for our client's (voice reservations) channel and their internal 
AS400 systems. She will work with a team that was recently aligned within the 
Rental Operations organization and is working to accomplish aggressive and exciting 
goals including re-writing our client's Voice application. Programmer analysts will 
be responsible for working with project managers, business analysts, and other 
programmer analyst to combine the functionality of two existing applications into 
one new robust application utilizing some of the latest technologies. She will be 
developing prototypes and performing complex application coding and 
programming. She will interpret end-user business requirements to develop and/or 
modify the technical design specifications for off-the-shelf and/or custom-developed 
applications. She will also analyze and review software requirements to determine 
feasibility of design within time and cost restraints. In addition, those in this position 
perform unit integration testing and assist with developing unit test scripts. 
[The beneficiary's] specific duties break down as follows: 
- Code and successfully perform unit and integration testing of software to ensure 
proper and efficient execution as well as compliance with the business and 
technical requirements 
- Work with other programmer analysts to design interfaces between software 
applications in order to complete design requirements 
- Use system traces and debugging tools for problem determination and system 
tuning 
- Participate in the migration of applications to quality assurance and/or the 
production environment 
- Work with managers and team members to develop development standards 
- Perform necessary product ion-support tasks involving on-call responsibilities 
The petitioner also indicated that the beneficiary's duties would encompass working with a number 
of programm ing languages and technology. The petitioner stated: "this position requires that an 
1 While the petitioner may refer to the proffered position of "computer programmer," internally as a 
"programmer analyst," we note that, these are two different occupations. 
-- ----- ------------------ - � --- -- -----------------
(b)(6)
NON-PRECEDENTDEC�ION 
Page 5 
applicant have a Bachelor's degree in engineering, computer science, information technology or a 
closely related analytic or scientific discipline, or the equivalent thereof." The petitioner claimed 
that it required all of its employees in this position to have a bachelor's degree and that it preferred 
that its potential employees also have work experience. 
The documents filed with the Form I-12 9 also included: (1) a letter from dated March 
14 , 20 14, addressing the nature of its agreement with the petitioner; and (2) documentation 
regarding the beneficiary's credentials. 
The Director found the evidence insufficient to establish eligibility for the benefit sought, and 
issued an RFE on June 9, 20 14 . The petitioner was asked to submit probative evidence to establish 
that the petitioner would maintain the requisite employer-employee relationship with the beneficiary 
throughout the validity period of the requested employment. 
The record in this matter includes the petitioner's response received by U.S. Citizenship and 
Immigration Services (USCIS) on July 23, 20 14 . This document referenced the beneficiary and a 
number of other beneficiaries and also included the petitioner's assertions regarding these 
individuals' worksite(s). It appears that the Director determined that this document constituted the 
petitioner's response to her RFE and based on the response, issued her denial decision on August 19 , 
20 14 , on the employer-employee and specialty occupation grounds referenced above. Subsequent 
to the issuance of the Director's August 19 , 20 14 denial decision, the petitioner submitted a 
"RESPONSE TO RFE" dated August 28, 20 14 and received by USCIS on August 29, 20 14 . 
In our de novo review of this matter, we have reviewed the petitioner's response to the Director's 
RFE, received on August 29, 20 14 , in addition to the petitioner's brief and the documents submitted 
on appeal. The petitioner's submission, received August 29, 20 14 , included the following 
documentation: a duplicate copy of March 14, 20 14 letter; a copy of a "Contract 
Consultant Service Agreement" between _ and the petitioner, dated October 31, 20 13 and 
signed by the petitioner on the same date and by on November 1, 20 13 ; a copy of the 
petitioner's organizational chart2; a sample copy of an employee performance evaluation; excerpts 
from the Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) regarding the 
"Computer Programm er" and "Software Developer" occupational groups; and documentation 
referencing an "employee leasing agreement" between the petitioner and 
On appeal, the petitioner contends that the Director's findings were erroneous. In support, of this 
contention the following documentation was provided: 
• The petitioner's business license, a sales contract for real property, and a copy of 
the petitioner's business brochure. 
• The petitioner's 20 13 Internal Revenue Service (IRS) Form 11 20S, U.S. Income 
Tax Return for an S Corporation. 
2 It is noted that due to an apparent error in copying, the left side of the organizational chart is incomplete. 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
• A sample Employment Agreement identif ying the petitioner and "John Doe, an 
individual/employee ("Employee or Prospective Employee") to serve in the 
position of a "T echnical Analyst." 
• A duplicative copy of the 2013 Contract Consultant Service Agreement between 
the petitioner and 
• A duplicative copy of March 14, 2014 letter. 
• A duplicative copy of an excerpt from the Handbook regarding the "C omputer 
Programmer" and "S oftware Developers" occupational groups and a copy of an 
excerpt from the Handbook regarding the occupational group of "Acco untants 
and Auditors." 
• A duplicative copy of the petitioner's partial organizational chart. 
• Duplicative documentation referencing an "employee leasing agreement" 
between the petitioner and 
• A duplicative sample copy of an employee performance evaluation 
The petitioner asserts that it is the beneficiary's employer and that it has a valid employer-employee 
relationship with the beneficiary and the right to control the beneficiary as established by the above 
documents. The petitioner asserts further that the proffer ed position is a specialty occupation and 
references the Handbook in support of this assertion. 
III. EVIDENTIAR Y OVE RVI EW 
The Form I-129 and the accompanying LCA specified that the petition was filed to secure H-lB 
employment for the beneficiary as a Computer Programmer. However, the documentation from 
does not confirm, endorse, adopt, or acknowledge all of those duties described by the 
petitioner as comprising the work that the beneficiary specifi cally would perform. 
We note that the • /petitioner Contract Consultant Service Agreement (Contract) provides 
an umbrella of terms and conditions which would apply to any agreement between and 
the petitioner. According to the Contract, would not be obliged to accept any candidate 
that the petitioner might proffer for service as a Consultant. That is, it is only upon 
request that the petitioner agrees to provide information about Consultants that may be 
appropriate to work on a particular project. The Contract contains the following informative 
language: 
In the event desires to have a particular Consultant work on a project, [the 
petitioner] shall make such Consultant available to work on such project, and 
and [the petitioner] shall complete and sign a project schedule in the form 
attached hereto as Ex hibit A, and hereby incorporated herein (each a "P roject 
(b)(6)
Page 7 
NON-PRECEDENT DECISION 
Schedule"). For further clarify, (a) shall always have the right, in its sole 
and absolute discretion, to decide whether or not to enter into a Project Schedule in 
connection with a particular Consultant, (b) there shall be a separate Project 
Schedule for each Consultant that works on a particular project, and (c) 
shall not be obligated to enter into any minimum number of Project Schedules. 
We here note that the record does not include a Project Schedule identifying the beneficiary as a 
Consultant. 
The record does include the _ letter, dated March 14, 2014 , confirming that _ "h as 
contracted with [the petitioner] for the services of up to 40 people to serve as a Sr. Software 
Engineer/Java to work at facility." However, the letter appears to address positions 
with different occupational titles and higher prevailing-wage levels than those that the petitioner has 
ascribed to the proffered position. The petition was filed for a Level I (entry-level) prevailing-wage 
position within the Computer Programmers occupational group. 3 We find that there is insuffic ient 
evidentiary support in the record that Senior Software Engineer/Java positions are equivalent to or 
interchangeable with the proffered position, which the petitioner has identified as that of a 
Computer Programm er meriting only a Level I prevailing-wage.4 
3 The petitioner's designation of the proffered position as a Levell position on the submitted LCA indicates 
that it is an entry-level position for an employee who has only basic understanding of the occupation. 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. 
4 That is, if the occupational classification is for a computer programmer at a Level I wage in 
Missouri, the prevailing wage, when the petition was filed is $48,464 annually. 
For more information regarding the prevailing wage for computer programmers in 
Missouri, see the All Industries Database for 7/2013- 6/2014 for Computer Programmers at 
the Foreign Labor Certification Data Center, on the Internet at 
http:// www .flcdatacenter.com/OesQuickResults.aspx?code= 15-1131 & rear= 14&source= 1 (last 
visited Apr. 22, 20 15). If the occupational classification is for a programmer analyst, a subset of the 
occupational classification of computer systems analysts at a Level I wage in 
Missouri, the prevailing wage, when the petition was filed is $55,765 annually. For more 
information regarding the prevailing wage for computer systems analysts in 
, Missouri, see the All Industries Database for 7/2013 - 6/2014 for Computer Systems Analysts at the 
Foreign Labor Certification Data Center on the Internet at 
http://www.flcdatacenter.com/OesQuickResults.aspx?code=l5-1121� �year=l 4&source=l (last 
visited Apr. 22, 2015). Thus, the petitioner's proffer of an annual salary of "$60,000+" would fall within the 
required prevailing wage for the occupations of computer programmer or programmer analyst. If, however, 
the occupational classification is for a software engineer at a Level I wage in , 
. _ 
Missouri, the prevailing wage, when the petition was filed is $63,294 annually. For more 
information regarding the prevailing wage for software developers (applications) in 
Missouri, see the All Industries Database for 7/20 13 - 6/2014 for Software Developers 
(Applications) at the Foreign Labor Certification Data Center on the Internet at 
http://www.flcdatacenter.com/OesQuickResults.aspx?code= 15-1132� _'ear= 14&source= 1 (last 
visited Apr. 22, 2015). Moreover, the letter, dated March 14, 2014, notes that its senior software 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Further, we observe that the description of duties provided in the _ letter differs 
signifi cantly from the petitioner's description of the proffered position. For example, the petitioner 
does not indicate that the beneficiary will complete application development by coordinating 
requirements, schedules, and activities; contribute to team meetings; troubleshoot development and 
production problems across multiple environments and operating platforms or that she will use her 
time to update job knowledge by researching new Internet technologies and software products; 
participate in educational opportunities; read professional publications; maintain personal networks; 
and participate in professional organizations. These are specific duties included in the 
letter. Additionally, the letter indicates that its senior software engineer/Java consultants 
will involve assisting many clients, including and will be responsible for designing, 
developing, building, testing, implementing and supporting brands of web presences from a 
traditional and mobile user experience perspective. Again, the petitioner's description does not 
provide even this general overview of the beneficiary's duties. Similarly, the petitioner's indication 
that the beneficiary will be involved in the "development and support of software applications for 
our client's (voice re servations) channel and their internal AS 400 systems" is not mentioned in the 
letter. 
We find that these conflicts between the letter and the proffered position as otherwise 
described in the petition materially undermine the credibility of the petitioner's claim as to the type 
of work that would engage the beneficiary if this petition were approved. We also find that those 
conflicts are neither addressed nor resolved anywhere in the record of proceeding. The petitioner is 
obligated to clarify inconsistent and conflicting testimony by independent and objective evidence. 
Matter ofHo, 19 I&N Dec. 58 2, 59 1�92 (BIA 1988 ). 
Notably, the March 14 , 2014 letter includes as an attachment a "sample EXHBIT [sic] A 
-P roject Schedule" and notes that this "sample .. . wil1 be completed at start for each [petitioner] 
contractor that will be placed at " The record does not include documents 
establishing that the petitioner had actually secured work for the beneficiary that it claims is 
specialty occupation work when the petition was filed. This aspect itself is a major obstacle to both 
establishing the requisite employer-employee relationship between the petitioner and the 
beneficiary and that any prospective work would be specialty occupation work. 
We find, therefore, that the evidence of record does not establish that, by the date of the filing of the 
petition, the petitioner had secured definite, non-speculative work for the beneficiary for the period 
of employment specified in the petition. In this respect, we also find that the record does not 
support a finding that the beneficiary's services would be required for the previously quoted duties 
that the petitioner claimed for the proffered position. The record of proceeding lacks documentary 
engineer/java consultants must be able to work independently with limited supervision, which would require 
at least a Level Ill (experienced) or Level IV (fully competent) wage, not a Level 1 (entry) wage. 
Accordingly, the petitioner's LCA would not correspond to the petition in terms of either the occupational 
classification or the wage level if the beneficiary were indeed contracted to perform the Sr. Software 
Engineer/Java work described by in its March 14 , 2014 letter. 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
evidence from the asserted end-client 1 of the existence of, or details regarding, any 
particular project to which the beneficiary would be assigned in the United States. Again, this alone 
is a material flaw that fatally undermines the petitioner's efforts both to establish the requisite 
employer employee relationship and to qualify the proffered position as a specialty occupation. 
Upon review, we find that the petitioner has not established that it had specialty occupation work 
available for the beneficiary to perform as the beneficiary's employer when the petition was filed. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 
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 Corp., 17 I&N 
Dec. 248 (Reg. Comm'r 1978). 
Also, because the evidence of record does not establish either an actual offer-and-acceptance by 
related to the beneficiary for any specific work at the actual scope of any 
services to be performed remains merely speculative and, therefore, not a sufficient basis to support 
a determination that the petitioner would be engaging the beneficiary for actual work in the United 
States, as would be required to establish the petitioner as a United States employer in accordance 
with the provi sion at 8 C.F .R. § 21 4.2( h)(4)(i i). 
IV . EM PLOYER-EM PLOYEE. 
Continuing with our analysis of the petition, we will next discuss in further detail whether the 
petitioner has establ ished that it meets the regulatory definition of a "U nited States employer" and 
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" as set out at 8 C.F.R. § 21 4.2 (h)(4) (ii). 
We note that the record contains assertions in the 'petitioner Contract, in the 
letter, and in the letter from to the effect that the petitioner is the employer 
and/or sole employer of whatever persons it would provide to work at _ We have 
considered all such assertions both individually and as part of the totality of evidence bearing on the 
employer-employee issue. However, while those statements are factors to be considered, there is 
insufficient indication that they were based upon application and analysis of the common-law 
employer-employee test which governs determinations of the employer-employee relationship in 
the H-1 B specialty-occupation context. Thus, those assertions regarding the petitioner as employer 
merit little to no probative weight towards resolving the employer-employee issue before us. 
Section 10l (a)(l5 )(H)( i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject to section 212 0)( 2), who is coming temporarily to the United States to 
perform services. . . in a specialty occupation described in section 
21 4(i )( 1) .. . , who meets the requirements for the occupation specified in section 
21 4(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 21 2(n)(1) .. .. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
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: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organiz ation 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 
(3) Has an Internal Revenue Service Tax identification number. 
(E mphasis added); see also 56 Fed. Reg. 61 111, 61 121 (Dec. 2, 1991 ). 
The record is not persuasive in establishing that the petitioner will have the requisite 
employer-employee relationship with the beneficiary. The evidence of record is not sufficiently 
comprehensive to bring to light all of the relevant circumstances that pertain to the parties among 
themselves and also with relation to the beneficiary with regard to any project. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 21 4.2(h)(4)(i i), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H )(i)(b) of the Act indicates that an alien coming to the 
United States to perform services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l ) of the 
Act, 8 U.S.C . § 1182(n )( l) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-1B "employee." Subsections 212 (n)(l)(A)(i) and 212 (n)(2)(C)(vii) 
of the Act, 8 U.S.C. § 1182(n )(1) (A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that 
"United States employers" must file a Form I-129 in order to classify aliens as H-lB temporary 
"employees." 8 C.F .R. § 214.2( h)(l), (2)(i)(A). Finally, the definition of "U nited States employer" 
indicates in its second prong that the petitioner must have an "employer-employee relationship" with 
the "employees under this part," i.e., the H-IB beneficiary, and that this relationship be evidenced by 
the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of any such 
employee." 8 C. F.R. § 214.2( h)(4)( ii) (defining the term "U nited States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor USCIS defined the terms 
"employee" or "employer-employee relationship" by regulation for purposes of the H-1B visa 
classification, even though the regulation describes H-lB beneficiaries as being "employees" who must 
have an "employer-employee relationship" with a "U nited Sta tes employer." Id. Therefore, for 
purposes of the H -1 B visa classification, these terms are undefined. 
The United States Supreme Court has 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. 
-· -- -----------�------------·-- -----------------
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
Co. v. Darden, 503 U.S. 318, 322-323 (1 992) (hereinafter "Darden") (quoting Community for Creative 
Non-Violence v. Reid, 490 U.S. 730 (1 989)). 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 Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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. 254, 258 (1 968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101( a)(1 5)(H)(i)(b) of the Act, "employment" in section 212 (n)(l)(A)(i) of the Act, or 
"employee" in section 21 2(n)(2)(C) (vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S1 71 06 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H1 2358 (daily ed. Oct. 27, 
19 90). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition. 5 
5 While the Darden court considered only the definition of "employee" under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of 
"employer," courts have generally refused to extend the common law agency definition to ERISA's use of 
employer because "the definition of 'employer' in ERISA, unlike the definition of 'employee,' clearly 
indicates legislative intent to extend the definition beyond the traditional common law definition." See, e.g., 
Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), ajj'd, 27 F.3d 800 (2nd Cir.), cert. 
denied, 513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context 
of the H-lB visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
Specifically, the regulatory definition of "United States employer" requires H-1B employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-IB "employee." 8 C.F.R. § 214 .2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-1B employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F .R. § 214.2( h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-3 19. 6 
In the absence of an express congressional intent to impose broader definitions, both the "conventional 
master-servant relationship as understood by common-law agency doctrine" and the Darden 
construction test apply to the terms "employee" and "employer-employee relationshif as used in 
section 101(a)(l5 )(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F .R. § 214.2 (h). 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-IB nonimmigrant petitions, USCI S 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F .R. § 21 4.2( h)(4)(ii) (defining a "United States employer" as one who "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 .... " (Emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 32 3-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (19 58 ). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445 ; 
see also New Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
6 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee 
relationship," the agency's interpretation of these terms should be found to be controlling unless "'plainly 
erroneous or inconsistent with the regulation.'" Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
7 That said, there are instances in the Act where Congress may have intended a broader application of the 
term "employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 
214(c)(2)(F) of the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and 
controlling L-IB intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
also Defensor v. Meissner, 201 F.3d 38 4, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients ofbeneficiaries' services, are the "true employers" of H-lB nurses under 8 C.F .R. § 214 .2(h), 
even though a medical contract service agency is the actual petitioner, because the hospitals ultimately 
hire, pay, fire, supervise, or otherwise control the work of the beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 53 8 U.S. at 448 -449; New Compliance Manual at § 2-III(A)(l). 
When examining the factors relevant to determining control, USCIS 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 32 3-324. For 
example, while the assignment of additional projects is dependent on who has the right to assign them, 
it is the actual source of the instrumentalities and tools that must be examined, and not who has the 
right to provide the tools required to complete an assigned project. See id. at 323 . 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, .. . the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship .. . with no 
one factor being decisive."' ld. at 45 1 (quoting Darden, 503 U.S. at 32 4) . 
Applying the Darden and Clackamas tests to this matter, 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." 
We note the petitioner's assertion that the beneficiary will work at the offices of in 
. Missouri; and we further note the petitioner's contentions that at all times it will 
maintain an employer-employee relationship with the beneficiary. However, the record of 
proceeding does not establish what project(s) would require the beneficiary to perform the duties 
and responsibilities that the petitioner ascribed to the proffered position. 
First, the record of proceeding does not establish the existence of any specific work that 
would definitely be awarded to the beneficiary, or any other worker that the petitioner might, 
propose to _ as a candidate for one of the 40 positions has contracted with the 
petitioner to supply. We have reviewed the petitioner Contract, as well as all other 
documents in the record, to determine whether the Contract, or any other document, constitutes an 
offer - let alone a contractual acceptance - by for the beneficiary to perform any 
particular type of work, for any specific period, as either a computer programmer or in any other 
capacity. 
. ----------�---- ---------------
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
As discussed above, the petitioner/ Contract specifically states that _ would not 
be obliged to accept any candidate that the petitioner might proffer for service as a Consultant. Like 
the Contract, the letter does not refer to any project by which had awarded any 
particular project-work for the beneficiary to perform, whether as a computer programmer or 
otherwise. Thus, this document does not indicate that by the date of its signing the petitioner had 
secured any definite, non-speculative work for the beneficiary with regard to any project. 
Like the Contract, this _ letter also is not sufficient probative evidence that the petitioner 
and the beneficiary would have the employer-employee relationship claimed in the petition or that 
the potential work to be performed by the beneficiary would be specialty occupation work. 
Further, the letter states that the petitioner's candidate-submission efforts would be directed at "Sr. 
Software Engineer/JAVA duties" which materially conflicts with the type of position specified in 
the petition, that is, a Level-l (entry) prevailing-wage position for a Computer Programm er. 
Additionally, the evidence of record does not establi sh that the petitioner or any of its staff would 
determine, assign, and evaluate the beneficiary's day-to-day work during any assignment at 
_ 
Absent the Project Schedule or any other 'petitioner document that delineates 
the contractual terms and conditions relevant to the employer-employee common law touchstone of 
control - we are unable to determine that balancing all of the relevant indicia of control would favor 
the petitioner so as to establish the requisite employer-employee relationship. 
We have also reviewed the sample of the petitioner's Employees' Performance Appraisal and 
Development Program form as evidence of the petitioner's claimed right to control the beneficiary. 
This eight-page document reflects that the beneficiary would be subject to the petitioner's appraisal 
during periods when the beneficiary would be working on assignment. While this document is 
indicative of a level of control that the petitioner would have over the beneficiary if she were to be 
assigned to we note again that there is insufficient evidence that the beneficiary would in 
fact be assigned to for the period specified in the petition, so as to make this appraisal 
form relevant to the petition now before us on appeal. Moreover, even if the petitioner had 
establi shed some relevance, the evidentiary weight of the form would be reduced to little or no 
probative value because there is no evidence anywhere in the record of proceeding that • 
would have to either participate in, review the results of, or abide by the results of the petitioner's 
evaluation process for any purpose . 
Next, we note that while social security contributions, worker's compensation contributions, 
unemployment insurance contributions, federal and state income tax withholdings, and other 
benefits are still relevant factors in determining who will control an alien beneficiary, other 
incidents of the relationship, e.g., who will oversee and direct the work of the beneficiary, who will 
provide the instrumentalities and tools, where will the work be located, and who has the right or 
ability to affect the projects to which the alien beneficiary is assigned, must also be assessed and 
weighed in order to make a determination as to who will be the beneficiary's employer. 
We here make several findings regarding the record's indicia of the petitioner's control with regard 
to the beneficiary and her work - that is, if the beneficiary should be accepted by for 
work at It appears that the petitioner would be responsible for paying for liability 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
insurance, social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings. Also, through its Professional 
Employment Organization (or "PEO"), , the petitioner would distribute pay to the 
beneficiary. However, there will be no work and no pay absent an express agreement by 
, to accept and pay for services from the beneficiary. Under certain circumstances, the 
petitioner could unilaterally transfer or remove the beneficiary after assignment to an 
project, and it would retain the authority to fire the beneficiary. However, the record establishes 
that would always retain the power to "terminate the Project Schedule in connection with 
any Consultant" and that the petitioner shall "immediately remove the applicable Consultant from 
premises. " We also note that although the petitioner submitted a sample Employment 
Agreement, the record does not include any document signed by both the petitioner and beneficiary 
for particular project-work already secured for the beneficiary. 
There are numerous aspects of the evidence of record that are factors which weigh against a 
favorable determination on the petitioner's claim that it satisfies the employer-employee 
requirement. The record indicates that, if in fact the beneficiary were selected for a particular 
project pursuant to the consultant-selection process, she would be assigned to a location 
Mi ssouri) other than the petitioner's office address (in 
Missouri).8 There IS insufficient evidence that the petitioner would maintain any supervisory 
presence at the work-location. 
Moreover, as noted above, it is clear that retains the absolute right to terminate any 
project schedule and thus the right to fire any consultant who is the subject on the project schedule. 
In particular, paragraph 1.3, Termination of Project Schedule by , includes the following 
language: 
reserves the discretion to terminate the Project Schedule in connection 
with any Consultant immediately by giving [the petitioner] oral or written notice 
thereof by telephone, mail, e-mail, and/or facsimile .... In the event gives 
such a notice to [the petitioner], (a) the applicable Project Schedule shall terminate 
immediately, and (b) [the petitioner] shall immediately remove the applicable 
Consultant from premises. 
Although the petitioner's evaluation review form that it has submitted into the record does not 
appear to include any proscription against the petitioner evaluating the beneficiary or any other 
person that it may assign to temporarily staff projects, there is insufficient evidence that 
the petitioner's evaluations are binding upon _ Also, there is insuffic ient indication that, 
solely on the basis of its performance evaluations, the petitioner could unilaterally keep anyone at 
the project site regardless of contrary performance determinations by 
The record of proceeding does not contain sufficient probative evidence that the petitioner would 
play any substantial role in determining the particular duties and tasks that any worker accepted for 
8 The petitioner states in its April 1, 2014 letter that the beneficiary "will be assigned to [ 
"will work primarily at the I I site." 
]" and she 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
assignment at _ would perform in the day-to-day work associated with such assignment. 
We find that the record of proceeding contains insufficient documentary evidence from 
including the petitioner in day-to-day determinations and evaluations of tasks to be performed by 
workers assigned to 
The evidence of record reflects that would, more likely than not, ultimately generate and 
determine the substantive scope and duration of any work of the type that the petitioner asserts as 
the basis of the petition. 
With regard to the petitioner's claim of the right to manage and evaluate its workers, we have 
already noted the evidence of performance evaluation forms. However, neither the petitioner nor 
identify any specific management authorities and responsibilities that have been reserved 
for the petitioner to exercise over designating the beneficiary's day-to-day tasks, evaluating the 
quality and efficiency of the beneficiary's work, and providing guidance on immediate-work issues 
as needed. There is insufficient evidence that any work to which the beneficiary might be assigned 
would require the petitioner to provide its own proprietary information or technology, 
The totality of the evidence reflects that the beneficiary's work would inherently require access to 
and use of the end-client's IT instrumentalities (such as its own IT systems, computer programs, and 
software applications). Further, as indicated in the Contract, any worker supplied for 
within the scope of the duties described in the letter would not be used to 
produce an end-product for the petitioner's own use or distribution/sale to the public or any of its 
clients. Rather, the totality of the evidence indicates that whatever work-products might be 
produced by any such worker would be solely for the end-client use and benefit and 
would have to conform to requirements - not the petitioner's. 
We also find that the petitioner has undermined the credibility of the petition by its statements, 
made in its April I, 20 14 letter of support and repeated on appeal, that "[ a]ll activities, including 
managerial supervision and hiring and firing decisions as well as performance evaluations are 
controlled by [the petitioner] " and that "[the petitioner's] clients have no managerial authority over 
our employees and our employees do not fill positions at client sites." If, as the context suggests, 
the petitioner includes within the scope of its "employees" any persons whom it would assign to 
pursuant to the Contract, then the petitioner's statements are materially 
inconsistent with information presented in that Contract as well as in the letter from 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 16 5 (Comm. 19 98) 
(citing Matter ofTreasure Craft of California, 14 I&N Dec. 19 0 (Reg. Comm. 19 72)). 
It is further noted that the petitioner provided no explanation for the inconsistencies. 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. 
at 59 1 -92. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Id. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
We fully cons idered all of the submissions from the entities involved, including the letters 
submitted by representatives of Based upon our review, we reiterate our finding that the 
only contract-document submitted into the record is the 'petitioner Contract and that, 
neither it or any other documentary evidence provides specific information with regard to the actual 
supervisory and management framework that would determine, direct, and supervise the 
beneficiary's day-to-day work at _ if she were selected to work there. Based upon this fact 
and upon all of the aspects of the record that we have discussed as bearing on the employer­
employee issue, we conclu de that the evidence of record is inconclusive on the issue of whether it is 
more likely than not that the petitioner and the beneficiary would have the requisite employer­
employee relationship in the context of the work to be performed if this petition were approved. 
We reach this conclusion based upon the application of the above-discussed common law principles 
to the totality of the evidence of record. As it is the petitioner's burden to establish that an 
employer-employee relationship exists, and the petitioner has not met this burden, the appeal will be 
dismissed and the petition will be denied. 
Without full disclosure of all of the relevant factors relating to the end-client, including evidence 
corroborating the beneficiary's actual work assignment, we are unable to find that the requisite 
employer-employee relationship will exist between the petitioner and the beneficiary; and, of 
course, such disclosure is necessarily precluded where, as here, there is no definite employment. 
The evidence of record, therefore, is insufficient to establish that the petitioner qualifies as a 
"United States employer," as defined by 8 C.F.R. § 214 .2(h)(4)(ii). Merely claiming in its letters 
that the beneficiary is the petitioner's employee does not establish that the petitioner exercises any 
substantial control over the beneficiary and the substantive work that she performs. 
The petitioner's reliance on claims that it would pay the beneficiary's salary (via 
'• set wages, control work locations, ar1d manage and evaluate performance is 
misplaced. As we have noted, the existence of actual work for the beneficiary has not been 
established. The record of proceeding before us does not document the full panoply of employer­
employee related terms and conditions that would control the beneficiary's day-to-day work; 
therefore, we do not have before us a sufficiently comprehensive record to identify and weigh all of 
the indicia of control that should be assessed to resolve the employer-employee issue under the 
above discussed common law touchstone of control. 
Additionally, as we already noted, the evidence of record does not establish the petitioner as 
performing the essential U.S. employer function of engaging the beneficiary to come to the United 
States for actual work established for the beneficiary at the time of the petition's filing. 
The petitioner has not established that, at the time the petition was submitted, it had H -1 B caliber work 
for the beneficiary that would entail performing the duties as described in the petition, and that was 
reserved for the beneficiary for the duration of the period requested. We therefore cannot conclude 
that the petitioner has satisfied its burden and established that it qualifies as a United States 
employer with standing to file the instant petition in this matter. See section 214 ( c )(I) of the Act 
(requiring an "I mporting Employer"); 8 C.F.R . § 21 4.2(h)(2)(i)( A) (stating that the "United States 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
employer ... must file" the petition); 56 Fed. Reg. 61 111 , 61 11 2 (Dec. 2, 19 91) (explaining that 
only "United States employers can file an H- 1 B petition" and adding the definition of that term at 
8 C.F .R. § 21 4.2(h)(4) (ii) as clarification). 
As discussed above, the petitioner has not established the requisite employer-employee relationship 
between the petitioner and the beneficiary. For this reason the petition must be denied. 
V. SPECIALT Y OCCUPATION 
Next we will address whether the petitioner has provided sufficient evidence to establish that it will 
employ the beneficiary in a speci alty occupation position. Based upon a complete review of the 
record of proceeding, including the evidence submitted on appeal, and for the specific reasons 
described below, we agree with the Director and find that the evidence does not establish that the 
position as described constitutes a specialty occupation. 
A. The Law 
For an H -1 B petition to be granted, the petitioner must provide sufficient evidence to establish that 
it will employ the beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the petitioner must establish that the employment it is offering to the beneficiary meets the 
applicable statutory and regulatory requirements. 
Section 21 4(i)(l) of the Act, 8 U.S.C. § 11 84(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. § 21 4.2(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. § 21 4.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
(b)(6)
Page 19 
NON-PRECEDENT DECISION 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel pos1t10ns 
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 . § 21 4.2( 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. 28 1, 291 (1 988 ) (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 Lo an Ins. Corp., 489 U.S. 561 (1 989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 19 96). As such, the criteria stated in 8 C.F.R . 
§ 21 4.2( 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 at 38 7. 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 21 4(i)(l ) of the Act ar1d the regulation at 8 C.F .R. 
§ 214 .2 (h)(4)(ii), USCIS consistently interprets the term "degree" in the criteria at 8 C.F.R . 
§ 21 4.2(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. Chertojf, 
484 F .3d at 14 7 (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- 1 B 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 duti es and responsibilities of the particular position, fairly 
represent the types of specialty occupations that Congress contemplated when it created the H-lB 
visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See gene rally Defensor v. Meissner, 201 F. 3d 38 4. 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. Meissner, 201 F.3 d at 38 7-388. 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. ld at 38 4. Such 
evidence must be suf fici ently 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 
The petitioner's specialty-occupation claim resides in the work that the petitioner asserts the 
beneficiary will provide per contractual agreement between the petitioner and another entity, or 
entities. Thus, to meet its burden of proof, it is incumbent upon the petitioner to provide evidence 
of the pertinent contractual requirements that is suff icient to show that their actual performance 
would require the theoretical and practical application of at least a bachelor's degree level of a body 
of highly specialized knowledge in a specific specialty - in compliance with the "specialty 
occupation" definition at section 21 4(i)( l) of the Act and the regulation at 8 C.F.R. 
§ 214 .2(h)(4)(ii). Further, the petitioner must establish that the petition was filed on the basis of 
definite, non-speculative employment that had been secured for the beneficiary by the time the 
petition was filed. Again, USCIS regulations affirmatively require a petitioner to establish 
eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F .R. 1 03 .2(b )( 1 ). A 
visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm'r 1978). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 I&N 
Dec. 16 9, 176 (Assoc. Comm'r 1998). 
That is, when determining whether a proffered position qualifies as a specialty occupation, USCIS 
must determine, inter alia, whether the petitioner has (1) provided sufficient evidence to establish 
that the beneficiary will perform the duties of the proffered position as stated in the petition; and (2) 
established that, at the time of filing, it had secured non-speculative work for the beneficiary that is 
in accordance with the petitioner's claims about the nature of the work that the beneficiary would 
perform in the proffered position. For the reasons we shall now discuss, the evidence of record is 
insuffici ent to meet either of these requirements. 
The record does not establish that, by the petition's filing, the petitioner had secured any work that 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
would require the beneficiary to perform the duties of the proffered position for the period specified 
in the petition. Although the petitioner has established a contractual relationship with 
the petitioner has not submitted follow-on contractual commitments for specific work in such forms 
as Project Schedules, Statements of Work, Work Authorizations, or Purchase Orders, as 
confirmed it would have in its March 14, 2014 letter. We find that, while the documents discussed 
above indicate that the petitioner has a business relationship with again, they do not 
establish that this relationship actually generated work that the beneficiary would perform in 
accordance with the duties and responsibilities that the petitioner ascribed to the proffered position. 
The record lacks sufficient documentation establishing in-house work that would require the 
beneficiary to perform the duties and responsibilities that the petitioner has attributed to the 
proffered position. 
Thus, as discussed in the previous section of this decision, the petitioner has not established that the 
petition was filed for non-speculative work for the beneficiary that existed as of the time the H-1B 
petition was filed. The petitioner did not submit sufficient, probative evidence corroborating that, 
when the petition was filed, the beneficiary would be assigned to perform services pursuant to any 
specific contract(s), work order(s), and/or statement(s) of work (or other probative evidence) for the 
requested validity period and/or that the petitioner had a need for the beneficiary's services during 
the requested validity dates. There is insufficient documentary evidence in the record corroborating 
what the beneficiary would do, where the beneficiary would work, and the availability of work for 
the beneficiary for the requested period of employment. For an H -1 B petition to be granted, the 
petitioner must provide suffici ent evidence to establish that it will employ the beneficiary in a 
specialty occupation position. Going on record without supporting documentary evidence is not 
sufficient for pur poses of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. at 16 5 (citing Afatter of Treasure Craji of California, 14 I&N Dec. at 190). 
Again, as recognized in Defensor v. Meissner, it is necessary for the end-client to provide suffici ent 
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. See Defensor v. 
Meissner, 201 F.3d at 38 7-388. Here, the record of proceeding in this case is devoid of sufficient 
information from the end-client, regarding the specific job duties to be performed by the 
beneficiary for that company. The petitioner has not established the substantive nature of the work 
to be performed by the beneficiary, 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 normally 
requiring a degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of 
specialization and comple� ity 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 as a specialty 
occupation. The appeal will be dismissed and the petition denied for this reason. 
(b)(6)
NON-P RECEDENT DECISION 
Page 22 
As the petitioner premised its specialty occupation claim on an _ assignment for computer 
programmer work, the record's failure to substantiate that such an assignment had been secured for 
the beneficiary is dispositive of the specialty occupation issue. Therefore, we need not address 
additional evidentiary deficiencies which we have observed in the record that would preclude 
recognition of the proffered position as a specialty occupation if the petitioner had established that 
the beneficiary would be working as a computer programmer for The petitioner has not 
established that it has satisfied any of the criteria at 8 C.F.R. § 214 .2(h)(4)(iii) (A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. For this additional 
reason, the appeal will be dismissed. 
VI. BENE FICI ARY QUALIFI CATIONS 
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 evidence regarding the 
proffered position to determine whether it will require 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. Therefore, we 
need not and will not address the beneficiary's qualifications further, except to note that, in any 
event, the petitioner did not submit an evaluation of her foreign degree or sufficient evidence to 
establish that her degree is the equivalent of a U.S. bachelor's degree in a specific specialty. As 
such, since evidence was not presented that the beneficiary has at least a U.S. bachelor's degree in a 
specific specialty, or its equivalent, the petition could not be approved even if eligibility for the 
benefit sought had been otherwise established. 
VII. CONCLUSION 
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 Enterr;rises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9t Cir. 2003 ); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
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 , affd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communicat ions Comm'n, 351 F.3d 1177, 1183 (D .C. Cir. 2003) 
("W hen 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."). 
(b)(6)
NON-PRECEDENT DECISION 
Page 23 
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 29 1 of 
the Act, 8 U.S.C. § 1361; Ma tter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. The petition is denied.