dismissed H-1B Case: Computer Consulting

U.S. Citizenship . 
and Immigration 
Services 
MATTER OF Y-A-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22,2015 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting business, seeks to temporarily employ the Beneficiary as a 
"QA analyst" under the H-1B nonimmigrant classification. See Immigration and Nationality Act 
(the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(H)(i)(b). The Director, Vermont Service 
Center, denied the petition, and on motion, affirmed the denial decision. The matter is now before 
us on appeal. The appeal will be dismissed. 
I. ISSUES 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
is qualified to perform services in a specialty occupation. 1 However, beyond the decision of the 
Director, we will first determine whether the record of proceeding establishes that the proffered 
position qualifies as a specialty occupation? We will further address whether the Petitioner 
established that it will have a valid employer-employee relationship with the Beneficiary. 
II. SPECIALTY OCCUPATION 
For an H-1B 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. 
1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015); see 
also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989). 
2 
A beneficiary's credentials to perform a particular job are relevant only when the job is found to qualify as a specialty 
occupation. U.S. Citizenship and Immigration Services (USCIS) is required to follow long-standing legal standards and 
determine first, whether the proffered position qualifies as a specialty occupation, and second, whether a beneficiary was 
qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of Michael Hertz Assoc., 19 
I&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's background only come at issue after it is found that the 
position in which the petitioner intends to employ him falls within [a specialty occupation]."). 
Matter ofY-A-, Inc. 
A. Legal Framework 
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 [(I)] 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: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK 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 
2 
Matter ofY-A-, Inc. 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F .R. § 214.2(h)( 4 )(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(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, USCIS regularly approves H-lB petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H-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 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
Furthermore, we note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the 
work is to be performed for entities other than the Petitioner, evidence of the client companies' job 
requirements is critical. See Defensor v. Meissner, 201 F.3d at 387-88. 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. 
!d. at 384. Such evidence must be sufficiently detailed to demonstrate the type and educational level 
3 
(b)(6)
Matter ofY-A-, Inc. 
of highly specialized knowledge in a specific discipline that is necessary to perform that particular 
work. 
B. The Proffered Position 
On the Form I-129 petition, the Petitioner states that it wishes to employ the Beneficiary as a QA 
analyst on a full-time basis. The Petitioner also states that the Beneficiary will work off-site at 
m Delaware . The Petitioner did not request any other work 
sites. 
The Petitioner also provided an undated letter from its end-client, The letter 
signed by , on behalf of _ states that the QA analyst position requires 
"at least a Bachelor's degree (or any equivalent) in a directly or closely-related field."3 The letter 
also states that the Beneficiary's services are "provided by 
and that '' will control and supervise the overall work of [the 
Beneficiary]." 
In addition, the letter states that the Beneficiary 1s responsible for the following duties in the 
proffered position:4 
Ms. 
• Gathering Test requirements and documenting them into test strategy documents 
for multiple projects[.] 
• Participation in team strategy meetings and project related meetings. 
• Preparing test plans, test cases, test data, and executing test cases manually in 
Quality Centre. 
• Working with list/built teams to ensure all requirements are met and 
any defects 
are fixed promptly. 
• Providing feedback and status updates on tasks to project managers and 
leadership team. 
• Using tools such as Quality Center, Customer Care Desktop, Campaign Desktop, 
EVA, DST Portal, Hyperion, and Microsoft Office (Word, Excel and Power 
point) for auditing the files and records provided by the list/built team to ensure 
the quality of the product. 
letter also states that "[the Beneficiary] reports to me, , at ,s 
3 Ms. letter does not state that the position requires a degree in a particular specialty. The degree requirement 
set by the statutory and regulatory framework of the H-1 8 program is not just a bachelor's or higher degree, but such a 
degree in a specific specialty that is directly related to the duties and responsibilities of the position. See 214(i)( 1 )(b) of 
the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
4 
We observe that the Petitioner provided the same job duties in its letter dated Oct. 17, 2014, submitted in response to 
the RFE. 
5 As noted, the signatory of the letter is· not 
4 
(b)(6)
Matter ofY-A-, Inc. 
A letter in the record from the Human Resource Coordinator of 
states that the Beneficiary is an employee of the Petitioner and that 
employment relationship with the Beneficiary. 
C. Analysis 
has no 
Upon review of the description of the duties of the proffered position, we find that the Petitioner and 
the end-client did not provide any information with regard to the order of importance and/or 
frequency of occurrence with which the Beneficiary will perform the functions and tasks. Thus, the 
record does not .specify which tasks are major functions of the proffered position.· Moreover, the 
evidence does not establish the frequency with which each of the duties will be performed (e.g., 
regularly, periodically or at irregular intervals). As a result, the record does not establish the primary 
and essential functions of the proffered position. 
Moreover, while the Petitioner has identified its proffered position as that of a QA analyst, the 
description of the Beneficiary's duties, as provided by the ·Petitioner and the end-client, lack the 
specificity and detail necessary to support the Petitioner's contention that the position is a specialty 
occupation. While a generalized description may be appropriate when defining the range of duties 
that are performed within an occupation, such generic descriptions generally cannot be relied upon 
by the Petitioner when discussing the duties attached to specific employment for H -1 B approval. In 
establishing such a position as a specialty occupation, especially one that may be classified as a 
staffing position or labor-for-hire, the description of the proffered position must include sufficient 
details to substantiate that the Petitioner has H-lB caliber work for the Beneficiary. Here, the job 
description fails to communicate (1) the actual work that the Beneficiary would perform on a day-to­
day basis; (2) the complexity, uniqueness and/or specialization of the tasks; and/or (3) the correlation 
between that work and a need for a particular level education of highly specialized knowledge in a 
specific specialty. 
The Petitioner, thus, has not established the substantive nature of the work to be performed by the 
Beneficiary, which precludes a finding that the proffered position satisfies any criterion at 8 C.F.R, 
§ 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) the normal 
minimum educational requirement for the particular position, which is the focus of criterion 1; 
(2) industry positions which are parallel to the proffered position and thus appropriate for review for 
a: common degree requirement, under the first alternate prong of criterion 2; (3) the level of 
complexity or uniqueness of the proffered position, which is the focus of the second alternate prong 
of criterion 2; (4) the factual justification for a petitioner normally requiring a degree or its 
equivalent, when that is an issue under criterion 3; and (5) the degree of specialization and 
complexity of the specific duties, which is the focus of criterion 4. 
Further, the end-client claims that a bachelor's degree, without any specific specialty, is a sufficient 
minimum requirement for entry into the proffered position. A petitioner must demonstrate that the 
proffered position requires a precise and specific course of study that relates directly and closely to 
the position in question. There must be a close correlation between the required specialized studies 
5 
Matter ofY-A-, Inc. 
and the position; thus, the mere requirement of a degree, without further specification, does not 
establish the position as a specialty occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 
558, 560 (Comm'r 1988) ("The mere requirement of a college degree for the sake of general 
education, or to obtain what an employer perceives to be a higher caliber employee, also does not 
establish eligibility."). Thus, while a general-purpose bachelor's degree may be a legitimate 
prerequisite for a particular position, requiring such a degree, without more, will not justify a finding 
that a particular position qualifies for classification as a specialty occupation. Royal Siam Corp. v. 
Chertoff, 484 F.3d at 147. Again, the end-client asserts that its minimum requirement for the 
proffered position is only a bachelor's degree, without further requiring that that degree be in any 
specific. specialty. Without more, the Petitioner's statement alone indicates that the proffered 
position is not in fact a specialty occupation. 
Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record 
would in fact be the duties to be performed by the Beneficiary, we will analyze them and the 
evidence of record to determine whether the proffered position as described qualifies as a specialty 
occupation. To that end and to make its determination as to whether the employment described 
above qualifies as a specialty occupation, we tum to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A). 
A baccalaureate or higher degree in a spec(fic specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
We will first review the record of proceeding in relation to the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is normally the minimum requirement for entry into the particular position. 
US.CIS recognizes the U.S. Department of Labor's (DOL) Occupational Outlook Handbook 
(Handbook) as an authoritative source on the duties and educational requirements of the wide variety 
of occupations that it addresses.6 On the Labor Condition Application (LCA), the Petitioner asserted 
that the proffered position corresponds to the "Computer Occupations, All Other" occupational 
category.7 
We note that there are occupational categories which are not covered in detail by the Handbook, as 
well as occupations for which the Handbook does not provide any information. The Handbook 
states the following about these occupations: 
6 All references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/OCO/. 
7 The occupational category designated by the Petitioner is considered as an aspect in establishing the general tasks and 
responsibilities of a proffered position, and USCIS regularly reviews the Handbook on the duties and educational 
requirements of the wide variety of occupations that it addresses. However, to satisfy the first criterion, the burden of 
proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position would 
normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
6 
Matter ofY-A-, Inc. 
Although employment for hundreds of occupations is covered in detail in the 
Occupational Outlook Handbook, this page presents summary data on additional 
occupations for which employment projections are prepared but detailed occupational 
information is not developed. For each occupation; the Occupational Information 
Network (O*NET) code, the occupational definition, 2014 employment, the May 
2014 median annual wage, the projected employment change and growth rate from 
2014 to 2024, and education and training categories are presented. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Data for Occupations Not Covered in Detail," http://www.bls.gov/ooh/About/Data-for­
Occupations-Not-Covered-in-Detail.htm (last visited Dec. 18, 2015). 
Thus, the narrative of the Handbook reports that there are some occupations for which only summary 
data is prepared but detailed occupational profiles are not developed. 8 The Handbook suggests that 
for at least some of the occupations, little meaningful information could be developed. 
Accordingly, in certain instances, the Handbook is not determinative. When the Handbook does not 
· support the proposition that a proffered position is one that meets the statutory and regulatory 
provisions of a specialty occupation, it is incumbent upon the Petitioner to provide persuasive 
evidence that the proffered position more likely than not satisfies the statutory and regulatory 
provisions, including this or one of the other three criteria, notwithstanding the absence of the 
Handbook's, support on the issue. In such cases, it is the Petitioner's responsibility to provide 
probative evidence (e.g., documentation from other objection, authoritative sources) that indicates 
whether the particular position in question qualifies as a specialty occupation. Whenever more than 
one authoritative source exists,. we will consider and weigh all of the evidence presented to 
determine whether the particular position qualifies as a specialty occupation. 
Upon review of the record, we find that the Petitioner has not done so in the instant case. That is, the 
Petitioner has not submitted probative evidence that normally the minimum requirement for 
positions falling under the "Computer Occupations, All Other" occupational category is at least a 
bachelor's degree in a specific specialty, or its equivalent. Even if it did, the record lacks sufficient 
evidence to support a finding that the particular position proffered here would normally have such a 
minimum, specialty degree requirement, or its equivalent. 
In the instant case, the duties and requirements of the pos1t10n as described in the record of 
proceeding do not indicate that this particular position proffered by the Petitioner is one for which a 
8 We note that occupational categories for which the Handbook only includes summary data includes a range of 
occupations, including for example, postmasters and mail superintendents; agents and business managers of artists, 
performers, and athletes; farm and home management advisors; audio-visual and multimedia collections specialists; 
clergy; merchandise displayers and window trimmers; radio operators; first-line supervisors of police and detectives; 
crossing guards; travel guides; agricultural inspectors, as well as others. 
7 
Matter ofY-A-, Inc. 
baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the minimum 
requirement for entry. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for the Petitioner to establish that a 
requirement of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for 
positions that are identifiable as being (1) in the Petitioner's industry, (2) parallel to the proffered 
position, and also (3) located in organizations that are similar to the Petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS ·include: whether the Handbook reports that the industry requires a degree; whether the 
industry's professional association has made a degree a minimum entry requirement; and whether 
letters or affidavits from firms or individuals in the industry attest that such firms "routinely employ 
and recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As previously discussed, the Petitioner has not established that its proffered position is one for which 
the Handbook, or other authoritative source, reports a standard industry-wide requirement for at least 
a bachelor's degree in a specific specialty, or its equivalent. Thus, we incorporate by reference the 
previous discussion on the matter. Also, there are no submissions from the industry's professional 
association indicating that it has made a degree a minimum entry requirement. Furthermore, the 
Petitioner did not submit any letters or affidavits from similar firms or individuals in the Petitioner's 
industry attesting that such firms "routinely employ and recruit only degreed individuals." Nor is 
there any other evidence relevant to this prong. Thus, based upon a complete review of the record of 
proceeding, we find that the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered position qualifies as a specialty occupation, the 
Petitioner described the proffered position and its business operations. Upon review, we find that 
8 
Matter ofY-A-, Inc. 
the Petitioner has. not sufficiently developed relative complexity or uniqueness as an aspect of the 
proffered position. For instance, the Petitioner did not submit information relevant to a detailed 
course of study leading to a specialty degree and did not establish how such a curriculum is 
necessary to perform the duties it may believe are so complex and unique. While a few related 
courses may be beneficial in performing certain duties of the position, the Petitioner has not 
demonstrated how an established curriculum of such courses leading to a baccalaureate or higher 
degree in a specific specialty, or its equivalent, is required to perform the duties of the proffered 
position. The description of the duties does not specifically identify any tasks that are so complex or 
unique that only a specifically degreed individual could perform them. The record does not establish 
which of the duties, if any, of. the proffered position would be so complex or unique as to be 
distinguishable from those of similar but non-degreed or non-specialty degreed employment.9 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner has not satisfied the second 
alternative prong of8 C.F.R § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we review the Petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position, and any other documentation submitted by 
the Petitioner in support of this criterion of the regulations. 
9 
The Petitioner designated the proffered position on the LCA at a Levell (entry level) wage level, which is the lowest of 
four assignable wage-levels. This designation indicates that the proffered position is a position for an employee that is 
only required to have a basic understanding of the occupation; that he will be expected to perform routine tasks that 
require limited, if any, exercise of judgment; that he will be closely supervised and his work closely monitored and 
reviewed for accuracy; and that he will receive specific instructions on required tasks and expected results. Such a 
designation is inconsistent with a claim that the duties of the position are complex and unique as such a position would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) position, requiring a 
significantly higher prevailing wage. For example, a Level IV (fully competent) position is designated by DOL for 
employees who "use advanced skills and diversified knowledge to solve unusual and complex problems." For additional 
information regarding wage levels as defined by DOL, 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 _II_ 2009 .pdf. 
9 
(b)(6)
Matter ofY-A-, Inc. 
To merit approval of the petition under this criterion, the record must establish that the imposition of 
a degree requirement by the Petitioner (or, in this case, by the client) is not merely a matter of 
preference .for high-caliber candidates but is necessitated by performance requirements of the 
position. While a petitioner (or client) may believe or otherwise assert that a proffered position 
requires a specific degree, that opinion alone without corroborating evidence cannot establish the 
position as a specialty occupation. Were USCIS limited solely to reviewing a petitioner's claimed 
self-imposed requirements, then any individual with a bachelor's degree could be brought to the 
United States to perform any occupation as long as the petitioner artificially created a token degree 
requirement, whereby all individuals employed in a particular position possessed a baccalaureate or 
higher degree in the specific specialty or its equivalent. See Defensor v. Meissner, 201 F.3d at 
3 87 ~ In other words, if the Petitioner's stated degree requirement is only designed to artificially meet 
the standards for an H-lB visa and/or to underemploy an individual in a position for which he or she 
is overqualified and if the proffered position does not in fact require such a specialty degree or its 
equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition 
of a specialty occupation. See section 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the 
term "specialty occupation"). 
To satisfy this criterion, the evidence of record must show that the specific performance 
requirements of the position generated the recruitingand hiring history. A petitioner's perfunctory 
declaration of a particular educational requirement will not mask the fact that the position is not a 
specialty occupation. USCIS must examine the actual employment requirements, and, on the basis 
of that examination, determine whether the position qualifies as a specialty occupation. See 
generally Defensor v. Meissner, 201 F. 3d 384. In this pursuit, the critical element is not the title of 
the position, or the fact that an employer has routinely insisted on certain educational standards, but 
whether performance of 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. According to 
the Court in Defensor, "To interpret the regulations any other way would lead to an absurd result." 
!d. at 388. If USCIS were constrained to recognize a specialty occupation merely because a 
petitioner has an established practice of demanding certain educational requirements for the 
proffered position - and without consideration of how a beneficiary is to be specifically employed -
then any beneficiary with a bachelor's degree in a specific specialty could be brought into the United 
States to perform non-specialty occupations, so long as the employer required all such employees to 
have baccalaureate or higher degrees. See id. 
The Petitioner stated on the Form 1-129 that it was established in (approximately seven years 
prior to the filing of the H-IB petition) and that it has 55 employees. Upon review of the record, the 
Petitioner did not submit information regarding employees who currently or previously held the 
position. The record does not establish that the Petitioner normally requires at least a bachelor's 
degree in a specific specialty, or its equivalent, directly related to the duties of the position. Thus, 
the Petitioner has not satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
10 
Matter ofY-A-, Inc. 
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 in a specific specialty, or its equivalent 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires the Petitioner to establish that the 
nature of the specific duties is so specialized and complex that the knowledge required to perform 
them is usually associated with the attainment of a baccalaureate or higher degree in a specific 
specialty, or its equivalent. 
Upon review of the record of the proceeding, we find that the Petitioner has not provided sufficient 
evidence to satisfy this criterion of the regulations. In the instant case, relative specialization and 
complexity have not been credibly developed by the Petitioner as an aspect of the proffered position. 
That is, the proposed duties have not been described with sufficient specificity to establish that they 
are more specialized and complex than positions that are not usually associated with at least a 
bachelor's degree in a specific specialty, or its equivalent. 
We further incorporate our earlier discussion and analysis regarding the duties of the proffered 
position, and the designation of the proffered position in the LCA as a Level I position (the lowest of 
four assignable wage-levels) relative to others within the occupational category. Without more, the 
position is one not likely distinguishable by relatively specialized and complex duties.10 That is, 
without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position falling under this occupational category would 
likely be classified at a higher-level, such as a Level III (experienced) or Level IV (fully competent) 
position, requiring a substantially higher prevailing wage. 11 
The Petitioner has submitted insufficient evidence to satisfy this criterion of the regulations. We, 
therefore, conclude that the Petitioner did not satisfy the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(4). 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) and, therefore, it cannot be found that 
10 The Petitioner's designation of this position as a Levell, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor~s degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)(l) of the Act. 
11 
As previously discussed, a Level IV (fully competent) position is designated by DOL for employees who "use 
advanced skills and diversified knowledge to solve unusual and complex problems" and requires a significantly higher 
wage. 
11 
Matter ofY-A-, Inc. 
the proffered position qualifies as a specialty occupation. The appeal will be dismissed and the 
petition denied for this reason. 
III. EMPLOYER-EMPLOYEE 
Finally, beyond the decision of the Director, the Petitioner has not 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). 
Specifically, the Petitioner has not 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. 
A. Legal Framework 
Section 10l(a)(15)(H)(i)(b) ofthe.Act defines an H-1B nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 2120)(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: 
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 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the Beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is noted 
12 
Matter ofY-A-, Inc. 
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 individual 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)(1) of the Act, 
8 U.S.C. § 1182(n)(1). The intending employer is described as offering full-:time or part-time 
"employment" to the H-1B "employee." Subsections 212(n)(1)(A)(i) and 212(n)(2)(C)(vii) ofthe Act, 8 
U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-1B 
temporary "employees." 8 C.F.R. § 214.2(h)(l), (2)(i)(A). Finally, the definition of "United 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-1B 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 "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (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 "United States 
employer." !d. Therefore, for purposes of the H-1B 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 Mut. Ins. Co. v. 
Darden, 503 U.S. 318,322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 U.S. 730 
(1989)). 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." 
!d.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the inc;idents 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 Am., 390 U.S. 254,258 (1968)). 
13 
Matter ofY-A-, Inc. 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(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) ofthe Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136Cong. Rec. H12358 (daily ed. Oct. 27, 
1990); 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.12 
Specifically, the regulatory definition of "United States employer" requires H-IB 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-1B"employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-IB 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 318-19.13 
Accordingly, 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 relationship" as used 
in section 101(a)(15)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).14 
12 While the Darden court considered only the definition of"employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § I 002(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). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in section 
101 (a)(I5)(H)(i)(b) of the Act, "employment" iri 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-1 B 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 isto 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467 U.S. 837, 844-45 (1984). 
13 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 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
14 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-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
14 
Matter ofY-A-, Inc. 
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-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.P.R. 
§ 214.2(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 su~h 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 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). 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 EEOC Compl. Man. at § 2-III(A)(1) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients of beneficiaries' services, are the "true employers" of H -1 B 
nurses under 8 C.P.R. § 214.2(h), even though a medical contract service agency is the 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, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, 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 
323-24. 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."' Id at 451 (quoting Darden, 503 U.S. at 324). 
unauthorized individuals). 
15 
(b)(6)
Matter ofY-A-, Inc. 
B. Analysis 
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-1B temporary "employee." 
A key element in this matter is who would have the ability to hire, fire, supervise, or otherwise 
control the work ofthe Beneficiary for the duration of the H-1B petition. Upon review, we find that 
the Petitioner has provided inconsistent information regarding the entity and individual to whom the 
Beneficiary would report. For instance, the end-client letter states that will "control and 
supervise the overall work of [the Beneficiary]" while the Petitioner and claim that the 
petitioner will control and supervise the Beneficiary. Also, while the signatory of the end-client 
letter is , that letter states "[the Beneficiary] reports to me, at 
." The record does not contain an explanation for this inconsistency. "[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence.". 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing 
to where the truth lies. !d. at 591-92. 
The Petitioner also asserts that the Beneficiary's supervisor is the president of the Petitioner, 
and "reports at least weekly to Mr. " However, the Petitioner is located in 
New Jersey and it proposes to assign the Beneficiary to work for which 
raises the issue of who would supervise, control, and oversee the Beneficiary's work. The record 
contains insufficient evidence of who will supervise the Beneficiary and who will assign the 
Beneficiary's tasks and supervise his performance. Although the Petitioner has identified its 
president as the Beneficiary's supervisor, the record does not indicate that Mr. would 
accompany the Beneficiary to the location to supervise his work. 
Further, Ms. letter states that it "anticipates the projects [the Beneficiary] is working on to 
be long term, and will r~quire ongoing support beyond December 31
5
\ 2014." Notably, Ms. 
does not specify that services will be needed until September 13, 2017, the end of the requested 
validity period in the petition. 
There is a lack of probative evidence to support the Petitioner's assertions. It cannot be concluded, 
therefore, 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)(l) of the 
Act (requiring an "Importing Employer"); 8 C.F.R. § 214.2(h)(2)(i)(A) (stating that the "United 
States employer ... must file" the petition); 56 Fed. Reg. 61111, 61112 (Dec. 2, 1991) (explaining 
that only "United States employers can file an H-1B petition" and adding the definition of that term 
at 8 C.F.R. § 214.2(h)(4)(ii) as clarification). Accordingly, the petition cannot be approved, and the 
appeal must be dismissed for this additional reason. 
16 
(b)(6)
Matter ofY-A-, Inc. 
IV. BENEFICIARY QUALIFICATIONS 
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, a 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 updated and corrected evaluation of the Beneficiary's education submitted by the 
Petitioner is insufficient to establish that the Beneficiary possesses the equivalent of a U.S. 
bachelor's degree in a computer-related specialty. There is insufficient evidence that the evaluator 
reviewed the course descriptions to determine the coursework performed by the Beneficiary (three 
computer information systems courses taken at in Pakistan and 
five ·courses in computer information systems while enrolled in the Master of Business 
Administration program at _. such that a reliable, credible 
conclusion could be reached. While it appears that the Beneficiary could be qualified to perform the 
duties of a specialty occupation based on his education and/or experience, it is not apparent from the 
evaluation of his education alone that the Beneficiary is qualified to perform the duties· of a specialty 
occupation in a computer-related field. Accordingly, the appeal will be dismissed and the petition 
denied for this additional reason. 
V. CONCLUSION AND ORDER · 
As discussed, the evidence of record does not demonstrate: (1) that the proffered position is a 
specialty occupation; (2) that the Petitioner has a valid employer-employee 
relationship with the 
Beneficiary; and (3) the Beneficiary is qualified to perform the duties of a specialty occupation 
position in a computer-related field. Consequently, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
Cite as Matter ofY-A-, Inc., ID# 14896 (AAO Dec. 22, 2015) 
' 17