dismissed H-1B Case: Computer Consulting

MATTER OF W- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 19,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting firm, seeks to temporarily employ the Beneficiary as a 
"quality assurance engineer" under the H -1 B nonimmigrant classification for specialty occupations. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-lB program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the California Service Center denied the petition, concluding that the evidence of 
record does not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) 
the Petitioner will be a "United States employer" having an employer-employee relationship with the 
Beneficiary as an H-1B temporary employee. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decisiqn. Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address whether the proffered position qualifies as a specialty occupation in accordance 
with the applicable statutory and regulatory provisions. 
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 0ccupation in the United States. 
) 
.
Matter of W- Inc. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one. of the following criteria to qualify as a specialty occupation: 
(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. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. Cherto,ff, 484 F.3d 139, 147 (1st Cir. 2007) (describing 
"a degree requirement in a specific specialty" as "one that relates directly to the duties and 
responsibilities of a particular position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
In the H-1 B petition, the Petitioner stated that the Beneficiary will serve as a "quality assurance 
engineer." 1 In addition, the Petitioner stated that the Beneficiary will be working for the end-client 
. located at m California. 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter from the 
end-client, which stated that the Beneficiary will be working on the ' 
" project and provided the following job duties for the position:2 
The major responsibilities include executing test cases in all enabled 
browsers on multiple environments ; debug errors ·in transactional features and 
1 Public records indicate that the Petitioner's business address is zoned as a residential family home. 
2 
We observe that the wording of the duties provided by the end-client for the proffered position is taken almost verbatim 
from the Occupational Information Network (O*NET) OnLine 's list of tasks associated with the occupation category 
"Computer Programmers. " For additional information, see O*N ET OnLine, available at 
https ://www.onetonline .org/linklsummary/15-1131.00 (last visited June 16, 20 17). 
2 
.
Matter of W- Inc. 
prepare a tracker to list root causes and possible solutions that development teams can 
work on; find and maintain a log of defects using the tracking tool - liRA and update 
the progress in line with the corresponding technical/functional solutions; inv,olve in 
initial analysis of the issues based on screen shots and supply it as a key source for 
the identified defect along with the analysis; perform application tests for Application 
Program Interface (API) calls using Selenium test scripts; integrate the test scripts to 
the deployment sequence and generate the report; track the project issues, prioritize, 
analyze, resolve and communicate them to all the project teams; play a key role in 
testing the monthly/quarterly/yearly billing cycle in QA and production for shipments 
logged in the systems; conduct end to end testing for the shipment transactions, 
payment gateway, and cross check the label database for reconciliation; collect, 
aggregate and validate the feature and feed the 
information for data analytics; and to develop a generic test framework to enable 
interface with any 
· systems adhere to the Project Management Methodology governed 
by 
In response to the RFE, the Petitioner also submitted its own description of the Beneficiary's job 
duties for the proffered position, along with the approximate percentage of time the Beneficiary will 
spend on each duty. Specifically, the Petitioner stated the Beneficiary would perform the following 
tasks:3 
Task Percentage 
Requirements gathering and analysis, review application systems and execution plan 10% 
Prepare project plan, check list and test cases documents 20% 
Design framework, develop code, integrate and deploy using bamboo 50% 
Execution of test scripts and test cases 20% 
III. ANALYSIS 
A. Labor Condition Application 
We turn first to the labor condition application (LCA )4 submitted in support of the H -1 B petition, in 
which the Petitioner designated the proffered position under the occupational category "Computer 
Programmers'' corresponding to the Standard Occupational Classification (SOC) code 15-1131. On 
3 
The Petitioner provided additional information about the Beneficiary's roles and responsibilities in response to the 
Director's RFE. We reviewed and considered all of the information provided by the Petitioner. 
4 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher bf either 
the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the 
employer to other employees with similar experience and qualifications who are performing the same services. See 
Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
3 
Matter of W- Inc. 
appeal, the Petitioner states that the proffered position is "parallel to the occupation of a software 
engineer, which is an occupation that is now classed as a software developer." 
While these occupational categories may have some general duties in common, they are distinct and 
separate occupational categories. When the duties of the proffered position involve more than one 
occupational category, the U.S. Department of Labor (DOL) provides guidance for selecting the 
most relevant Occupational Information Network (O*NET) code classification. The "Prevailing 
Wage Determination Policy Guidance" by DOL states the following: 
In determining the nature of the job offer, the first order is to review the requirements 
of the employer's job offer and determine the appropriate occupational classification. 
The O*NET description that corresponds to the employer's job offer shall be used to 
identify the appropriate occupational classification . . . . If the employer's job 
opportunity has worker requirements described in a combination of O*NET 
occupations, the [determiner] should default directly to the relevant O*NET-SOC 
occupational code for the highest paying occupation. For example, if the employer's 
job offer is for an engineer-pilot, the [determiner] shall use the education, skill and 
experience levels for the higher paying occupation when making the wage level 
determination. 
· U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policy Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009),. available at http://www.foreignlaborcert. 
doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf. 
Thus, if the Petitioner believed its position was described as a combination of occupations, then 
according to DOL guidance, the Petitioner should have chosen the relevant occupational code for the 
highest paying occupation. The Level I prevailing wage for "Computer Programmers" is 
significantly lower than the Level I prevailing wage for "Software Developers, Applications" and 
, "Software Developers, Systems Software." For instance, at the time the Petitioner's LCA was 
· certified, the Level I prevailing wage for "Software Developers, Applications" in the area of 
intended employment was $79,498 per year and for "Software Developers, Systems Software" in the 
area of intended employment was $85,342 per year, while the Level I prevailing wage for 
"Computer Programmers" in the area of intended employment was $52,832 per year. Moreover, it is 
important to note that the offered wage to the Beneficiary is less than the prevailing wages for the 
"Software Developers, Applications" and "Software Developer, Systems Software" occupational 
categories. 
Under the H-1 B program, a petitioner must offer a b'eneficiary wages that are at least the actual wage 
level paid by the Petitioner to all other individuals with similar experience and qualifications for the 
specific employment in question, or the prevailing wage level for the occupational classification in 
the area of employment, whichever is greater, based on the best information available as of the time 
of filing the application. See section 212(n)(l)(A) ofthe Act, 8 U.S.C. § 1182(n)(l)(A). 
4 
Matter of W- Inc. 
As such, the Petitioner has not established (1) that it submitted a certified LCA that properly 
corresponds to the claimed occupation and duties of the proffered position; and (2) that it would pay 
the Beneficiary an adequate salary for his work, as required under the Act, if the petition were 
granted. These issues preclude the approval of the petition. 
B. Position Requirements 
Furthermore, the Petitioner has provided inconsistent information regarding the mm1mum 
requirements for the proffered position. The table below summanzes the variances in the 
educational requirements. 
Record of Proceedings Acceptable Fields of Study 
Petitioner's Initial Letter of Support 1) science, 
I 
information computer engmeenng, or 
technology (page 4) 
2) computer science or information technology or a related 
technical or business discipline (page 5) 
3) computer related discipline (page 5) 
4) related field and relevant experience 
Petitioner's RFE Response computer technology 
Petitioner's Job Posting computer science, computer engineering or higher, and 
three years of quality assurance experience 
End-Client's Letter computer science/engineering or related field 
End-Client's Work Order computer science or any related engineering field, plus three 
years related experience 
The Petitioner did not provide an explanation for the variances in the requirements. 
C. Specialty Occupation 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. 5 Specifically, the record (1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 6 
5 Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
6 
The Petitioner submitted documentation in support of the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
5 
Matter of W- Inc. 
1. First Criterion 
We tum first 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. We recognize DOL's Occupational Outlook Handbook (Handbook) 
as an authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses. 7 
As previously discussed, on the LCA, the Petitioner designated the proffered position under the 
occupational category "Computer Programmers" corresponding to the SOC code 15-1131.8 Thus, 
we reviewed the Handbook's subchapter entitled "How to Become a Computer Programmer," which 
states, in pertinent part: "Most computer programmers have a bachelor's degree in computer science 
or a related subject; however, some employers hire workers with an associate's degree." Bureau of 
Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Programmers 
(2016-17 ed.). Thus, the Handbook does not support the Petitioner's assertion that a bachelor's 
degree is required for entry into this occupation. The Handbook reports that the occupation 
accommodates a wide spectrum of educational credentials, including less than a bachelor's degree in 
a specific specialty. 
In the instant matter, the Petitioner has not provided documentation from a probative source to 
substantiate its assertion regarding the minimum requirement for entry into this particular position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
7 All of our references are to the 2016-17 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, 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. 
8 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Levell wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific instructions on required tasks and expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://tlcdatacenter.com/download!NPWHC _Guidance_ Revised _II_ 2009.pdf A prevailing wage determination starts 
with an entry-level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
6 
.
Matter of W- Inc. 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
casts its gaze upon the common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
a. First Prong 
To satisfy the first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor's or higher degree in a specific specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
In determining whether there is such a common degree requirement, factors we often consider 
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)(quotingHird/BlakerCorp. v. Sava, 712F. 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 another authoritative source, reports a requirement for at least a bachelor's degree 
in a specific specialty, or its equivalent. We incorporate by reference the previous discussion on the 
matter. 
In support of this criterion, the Petitioner provided a letter from a company discussing its opinion 
regarding the requirements of a quality assurance engineer position. Although the company states 
that it "has been providing IT solutions and services since 2006 and currently has 23 full­
time employees," the letter lacks sufficient 
information regarding the company to conduct a 
meaningfully substantive comparison of its business operations to the Petitioner. The Petitioner did 
not provide any supplemental information to establish that the organization is similar to the 
Petitioner. 
In addition, the company states that "the minimum and mandatory requirements for the position of a 
Quality Assurance Engineer is a Bachelor's degree or its equivalent in a related field" and that, 
based on a review of the duties of the proffered position, "only an individual with at least the 
equivalent of a bachelor's degree in Computer or Engineering or Information Systems related field 
would be qualified." While the company states that it only employs individuals who have the 
required qualifications and experience associated with the position, it does not provide the number of 
people who have held the position or describe their specific credentials. The letter is not supported 
by evidence or sufficient information that this organization "routinely employ[ s] and recruit[ s] only 
degreed individuals." See id. 
In response to the Director's RFE, the Petitioner submitted a letter from of 
Mr. based his opinion on his education and his professional and 
academic experience working in the university setting. 
7 
.
Matter of W- Inc. 
Mr. _ analyzes the Petitioner's duties of the proffered position and opines that the position 
requires a bachelor's degree in computer science, computer information systems, or a related degree. 
Mr. concludes that "[t]he duties of the Computer Programmer Analyst are both complex 
and specialized." 
Upon review of the opinion letter, we find that Mr. characterization of the proffered 
position as involving complex, unique, or specialized duties that require a bachelor's degree in 
computer science, computer information systems, or a related degree appears inconsistent with the 
Petitioner's designation of the position as a Level I, entry-level position. It is unclear if Mr. 
was informed of the Petitioner's attestation on the LCA that the proffered position was a 
Level I wage position. The omission of any discussion of the entry wage designation diminishes the 
evidentiary value of this opinion as the opinion does not appear to be based on a complete 
understanding of the proffered position. 
Moreover, the record does not include evidence that Mr. has published, conducted 
research, run surveys, or engaged in any pursuit, or employment - academic or otherwise 
regarding the minimum education requirements for the performance of the duties of the proffered 
position. While he may have anecdotal information regarding recruitment by employers for students 
who study computer science and computer engineering, the record does not include any relevant 
research, studies, surveys, or other authoritative publications as part of his review and/or as a 
foundation for his opinion. 
For the reasons discussed, we find that Mr. opinion letter lends little probative value to 
the matter here. Matter of Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not 
required to accept or may give less weight to an advisory opinion when it is "not in accord with 
other information or is in any way questionable."). 
The Petitioner also submitted copies of job announcements placed by other employers. However, 
upon review of the documents, we find that the Petitioner's reliance on the job announcements is 
misplaced. First, we note that some of the job postings do not appear to involve organizations 
similar to the Petitioner. For example, the Petitioner is a 20-person, information technology 
consulting and software development company, whereas one of the postings is for a staffing and 
recruiting agency for which no information is provided regarding the hiring employer. Furthermore, 
some of the advertisements provide little or no information regarding the hiring employers, but 
instead provide a wide range of general characteristics, such as having "1 to 50" employees, revenue 
of less than $1 million, or revenue between $1 million and $5 million. The Petitioner did not 
supplement the record of proceedings to establish that these advertising organizations are similar to 
the Petitioner. · 
When determining whether the Petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
8 
.
Matter of W- Inc. 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a basis for such an assertion. 
Moreover, many of the advertisements do not appear to be for parallel positions. For example, some 
of the positions appear to be for more senior, experienced employment than the proffered position. 9 
Some of the postings do not include the duties and responsibilities for the advertised positions.\ 
Thus, it is not possible to determine important aspects of the jobs, such as the day-to-day 
responsibilities, complexity of the job duties, supervisory duties (if any), independent judgment 
required or the amount of supervision received. Therefore, the Petitioner has not sufficiently 
established that the primary duties and responsibilities of the advertised positions are parallel to the 
proffered position. 
In addition, the Petitioner submitted evidence that does not indicate that at least a bachelor's degree 
in a directly related specific specialty (or its equivalent) is required. 10 The documentation suggests, 
at best, that although a bachelor's degree is sometimes required for quality assurance engmeer 
positions, a bachelor's degree in a specific specially (or its equivalent) is not. 11 
As the documentation does not establish that the Petitioner has met this prong of the regulations, 
further analysis regarding the specific information contained in each of the job postings is not 
necessary. 12 That is, not every deficit ofevery job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 
8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
9 For instance, the advertisement for requires a degree and "5+ years working as a quality assurance 
professional." In addition, the posting for requires a degree and a "3+ year of software engineering 
experience." The Petitioner indicated the proffered position is an entry-level position (on the LCA). 
10 As discussed, the degree requirement set by the statutory and regulatory framework of the H-1 B program is not just a 
bachelor's or higher degree, but a bachelor's degree in a specific specialty that is directly related to the duties of the 
position. See section 214(i)(l)(b) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). 
11 It must be noted that even if all of the job postings indicated that a requirement of a bachelor's degree in a specific 
specialty is common to the industry in parallel positions among similar organizations (which they do not), the Petitioner 
has not demonstrated what statistically valid inferences, if any, can be drawn from the advertisements with regard to 
determining the common educational requirements for entry into parallel positions in similar organizations. See 
generally Earl Babbie, The Practice of Social Research 186-228 (1995). Moreover, given that there is no indication that 
the advertisements were randomly selected, the validity of any such inferences could not be accurately determined even 
if the sampling unit were sufficiently large. See id. at I 95-196 (explaining that "[r]andom selection is the key to [the] 
process [of probability sampling]" and that "random selection offers access to the body of probability theory, which 
provides the basis for estimates of population parameters and estimates of error"). 
12 
The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solicitations for 
hire, they are not evidence of the actual hiring practices of these employers. 
9 
Matter of W- Inc. 
b. Second Prong 
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. 
While the Petitioner may believe that the position meets this prong of the regulations, we note, 
however, the record lacks evidence supporting the Petitioner's claim. For example, as discussed, the 
Petitioner designated the proffered position as an entry-level position within the occupational 
category by selecting a Level I wage. 13 This designation, when read in combination with the 
evidence presented and the Handbook's account of the requirements for this occupation, suggests 
that the particular position is ~ot so complex or unique that the duties can only be performed an 
individual with bachelor's degree or higher in a specific specialty, or its equivalent. 14 
Also, the record does not credibly demonstrate exactly what the Beneficiary will do on a day-to-day 
basis such that complexity or uniqueness can even be determined. That is, while the Petitioner 
claims that the position involves focusing on requirement gathering, analysis, and the design and 
testing of software, the Petitioner does not demonstrate how the Beneficiary's duties as described 
require the theoretical and practical application of a body of highly specialized knowledge such that 
a bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them. 
The Petitioner claims that the Beneficiary is well qualified for the position, and references her 
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 did not sufficiently develop relative 
complexity or uniqueness as an aspect of the duties of the position, and it did not identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. 
Accordingly, the Petitioner has not satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
13 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, 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. 
14 
The evidence of record does not establish that this position is significantly different from other positions within the 
occupational category such that it refutes the Handbook's information to the effect that some courses are advantageous to 
obtaining such a position, but not specifying that the degree must be in a specific specialty. 
10 
Matter of W- Inc. 
3. Third Criterion 
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. 
The Petitioner included a list of employees, 15 which shows that one individual holds the position of 
quality assurance engineer. The Petitioner provided this individual's foreign degree, 16 H-1B 
approval notice, and recent pay stub. While the Petitioner claims that it currently employs a quality 
assurance engineer, the Petitioner did not provide the job duties and day-to-day responsibilities for 
this individual. The Petitioner dtd not submit any information regarding the complexity of the job 
duties, supervisory duties (if any), independent judgment required or the amount of supervision 
received. Accordingly, it is unclear whether the duties and responsibilities of this individual is the 
same or similar to the proffered position. 
Further, the petitioning company was established in 1997, thus, approximately 19 years prior to the 
H-lB filing. Consequently, it cqnnot be determined how representative the Petitioner's claim 
regarding one individual over a 19-year period is of the Petitioner's normal recruiting and hiring 
practices. 
In addition, the Petitioner provided a copy of its own advertisement for the position of QA engineer. 
It appears that the Petitioner posted this notice after the RFE was issued. Evidence that the 
Petitioner creates after an RFE is issued will not be considered independent and objective evidence. 
Necessarily, independent and objective evidence would be evidence that is contemporaneous with 
the event to be proven and existent at the time of the Director's notice. 
Upon review of the record, we conclude that the Petitioner did not provide sufficient documentary 
evidence to support the assertion that it normally requires at least a bachelor's degree in a specific 
specialty, or its equivalent, directly related to the duties of the position. The Petitioner has not 
satisfied the third criterion of8 C.F.R. § 214.2(h)(4)(iii)(A). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform th'em is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. \ 
15 
We reviewed the list and supporting documents; however, we note that the Petitioner has not established the relevancy 
of the academic credentials of individuals employed in other positions. The record lacks evidence establishing that 
duties of these positions are the same or similar to the proffered position. 
16 
Notably, the Petitioner did not provide an academic credential evaluation to establish that the foreign'\ degree is 
equivalent to a U.S. bachelor's degree in a specific specialty. 
II 
.
Matter of W- Inc. 
As already discussed, the letter from does not establish the proffered position 
qualifies as a specialty occupation. Moreover, although the Petitioner claims that the Beneficiary is 
performing complex and specialized duties, relative specialization and complexity have not been 
sufficiently 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 other positions in the occupational category that are not usually associated with at 
least a bachelor's degree in a specific specialty, or its equivalent. We also reiterate our earlier 
comments and findings regarding the implications of the position's wage level designation on the 
LCA. Thus, the Petitioner has not demonstrated in the record that its proffered position is one with 
duties sufficiently specialized and complex to satisfy 8 C.F .R. § 214.2(h)( 4 )(iii)(A)( 4). 
IV. EMPLOYER-EMPLOYEE 
Finally, we will briefly address the issue of whether or not the Petitioner qualifies as an H-1 B 
employer. The United States Supreme Court determined that where federal law fails to clearly 
define the term "employee," courts should 
conclude that the term was "intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide 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." 
Id.; 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 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 Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
rdevant factors in determining who will control the 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 
12 
.
Matter of W- Inc. 
which the Beneficiary is assigned, must also be assessed and weighed m order to make a 
determination as to who will be the Beneficiary's employer. 
In this matter, the Petitioner stated that the Beneficiary would work offsite. We have reviewed the 
information in the record in support of the Petitioner's assertion that it maintains an employer­
employee relationship with the Beneficiary. However, we find that the Petitioner has provided 
inconsistent information. For example , in the letter of support, the Petitioner stated that the 
Beneficiary "will report to his/her [Petitioner]-employed manager/supervisor for work assignments." 
In addition, the employment contract between the Petitioner and the Beneficiary states that the 
Beneficiary will be responsible for sending status reports and time sheets to the Petitioner's "Onsite 
Project Manager and/or Account Manager." However, the organizational chart shows that the 
Beneficiary will report to the finance and human resources manager, who reports to the president 
and chief executive officer. The Petitioner provided no explanation for these inconsistencies. 
Furthermore, we note that the employment contract states that "[ s ]ervices will be provided at 
locations designated by [the Petitioner] and will include the offices of [the Petitioner's] clients and 
[the Petitioner's] development facilities worldwide. Thus, the location of your employment may 
change based on business needs." According to the employment contract, the Beneficiary may be 
placed at various locations and not necessarily in California as indicated on the H-IB 
petition. 
The record lacks sufficient consistent, probative documentary evidence to support the Petitioner 's 
claim that it will control the Beneficiary ' s actual work. Without full disclosure of all of the relevant 
factors, we are unable to properly assess whether the requisite employer-employee relationship will 
exist between the Petitioner and the Beneficiary. For this additional reason, the petition is not 
approvable. 
V. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of W- Inc. , ID# 414644 (AAO June 19, 20 17) 
13