dismissed H-1B Case: Computer Science

MATTER OF S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 6, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software consulting firm, seeks to temporarily employ the Beneficiary as a 
computer programmer under the H-1 B nonimmigrant classification for specialty occupations. S'ee 
Immigration and Nationality Act (the Act) section 101(a)(l5)(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 record did not 
establish that: (1) the Petitioner will engage the Beneficiary in an employer-employee relationship; 
and (2) the proffered position qualifies as a specialty occupation. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in denying 
the petition. 
Upon de novo review, we will dismiss the appeal. 
I. UNITED STATES EMPLOYER 
We have determined that the Petitioner has not demonstrated 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, tire, supervise, or otherwise 
control the work of any such employee." 1d. 
The Act defines an H -1 B nonimmigrant, in pertinent part, as an individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Matter of S-S-, Inc. 
Homeland Security] that the intending employer has tiled with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
Section 101(a)(l5)(H)(i)(b) ofthe Act 
' 
The term "United States employer" is defined 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. 
8 C.F.R. § 214.2(h)(4)(ii) (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). 
Although "United States employer" is defined in the regulations at 8 C.F.R. § 214.2(h)(4)(ii), it is 
noted that the terms "employee" and "employer-employee relationship" are not defined for purposes 
of the H-lB visa classification. Section 10l(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)(l) ofthe Act, 8 U.S.C. § 1182(n)(1). The intending employer is described as offering 
full-time or part-time "employment" to the H-18 "employee." Subsections 212(n)(l)(A)(i) and 
212(n)(2)(C)(vii) of the 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 l-129, Petition for a Nonimmigrant 
Worker, in order to classify individuals as H-1 B temporary "employees." 8 C.F.R. § 214.2(h)(1 ), 
(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-lB 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-1 B visa classification, even though the regulation describes 
H-lB beneficiaries as being "employees" who must have an "employer-employee relationship" with 
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Matter of S-S-. Inc. 
a "United States employer." !d. Therefore, for purposes of the H-1 B visa classification, these terms 
are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the 
term "employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide 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 Assoc.~· .. 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)). 
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)( 1 )( A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. 
See generally 136 Con g. Rec. S 17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H 12358 (daily ed. 
Oct. 27, 1990). On the contrary, in the context ofthe H-lB visa classification, the regulations define 
the term "United States employer" to be even more restrictive than the common law agency 
definition.' 
1 
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 
IOI(a)(IS)(H)(i)(b) of the Act, "employment" in section 212(n)(I)(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 
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Matter C!f S-S-. Inc. 
Specifically, the regulatory definition of "United States employer" requires H-1 B 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-1 B "employee." 8 C.F .R. § 214.2(h)( 4 )(ii). 
Accordingly, the term "United States employer" not only requires H-1 B 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. C.f. Darden, 503 U.S. at 318-19? 
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)(l5)(H)(i)(b) ofthe Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h). 3 
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-1 B nonimmigrant petitions, USC IS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.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, tire, supervise, or otherwise control the work of any such employee .... " (emphasis 
added)). 
The factors indicating that a worker is or will be an "employee" of an "employer'' are clearly 
delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 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 
classification, the term "United States employer" was defined in the regulations. to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron. U.S.A., Inc. v. Natural Res. Del Council. 
Inc., 467 U.S. 837,844-45 (1984). 
2 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 eJToneous 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)). 
3 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 B intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
4 
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Matter ofS-S-, Inc. 
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)(l) (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-lB nurses under 8 C.F.R. § 214 .2(h), even though a medical contract service 
agency is the petitioner, because the hospitals ultimately hire, pay, tire, 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-lll(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."' !d. at 451 (quoting Darden, 503 U.S. at 324). · 
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 -1 B temporary "employee." 
The Petitioner stated that it recruits qualified employees and assigns them to specific client worksites 
according to each employee's skill set. Specifically , the Petitioner stated that the Beneficiary will be 
its employee, but will work out of its mid-vendor's otlice, 
on the project for the end-client, The Petitioner maintains 
that it will be the Beneficiary's employer as it will have actual control over her position, be 
responsible for supervising her work performance , payroil , insurance , hiring /termination , etc . The 
Petitioner stated that the Beneficiary will report to its Account Manager. In 
describing how it supervises the Beneficiary's work, the Petitioner stated that the Beneficiary will be 
· required to submit a weekly electronic time sheet reporting her daily hours and a weekly activity 
5 
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}.fatter of S-S-, Inc. 
plan/report to document the specific work progress at the client site, along with weekly phone calls 
to go over work availability, performance, hours, etc. 
The Petitioner specifically stated that the Beneficiary will be 
working on an end-client project for the 
through its contract w·ith The Petitioner submitted its Master 
Subcontractor Agreement (MSA) with wherein it states the following pertaining to 
contracted employees: 
shall interview the Contractor Employee(s) ... and if appropriate shall set 
up an interview with the applicable customer . . . in its sole 
discretion ... shall provide a written \vork order ... specifying: (i) the name(s) ofthe 
Contractor Employee(s) needed by (each, an "Assigned Employee'', (ii) the 
name and location of the Customer for which the Assigned Employee shall 
work/at premises[,] (iii) the description of skills requested, (iv) the nature of 
the work to be performed by each Assigned Employee, (v) the experience 
requirements for each Contractor Employee, (vi) the time period for \vhich 
will utilize each Assigned Employee, and (vii) the hourly fee, and overtime fee, 
\vhich will pay Contractor for each Assigned Employee. 
Each Assigned Employee shall: (i) perform all tasks as and when requested by 
or such Customer; (ii) comply with all rules, regulations and \Vork 
customs, of and of each Customers ... and (iii) complete and 
deliver any time reports or the like as and when requested by 
Contractor acknowledges that it is responsible for the accuracy, reliability, 
completeness, validity, and timeliness of all worked [sic] performed by each 
Assigned Employee . 
. . . at any time and with prior short term notice, any 
terminate the assignment of any Assigned Employee. 
Customer may 
may terminate any Assigned Employee: (i) immediately if the Assigned 
employee fails to meet the work experience level stated in the applicable Work Order, 
(ii) immediately if the Assigned Employee violates any lavv, or (iii) after two (2) 
weeks prior written notice from to Contractor for any reason or for no 
reason, at sole discretion. Contractor shall have the right to terminate the 
services of any Assigned Employee without any cause by providing two (2) weeks 
prior written notice to 
6 
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Matter ofS-S-, Inc. 
The Petitioner submitted the accompanying Statement of Work (SOW) for the Beneficiary from 
listing a start date of October 3, 2016, and an end date of "36 Months + Extension." 
In response to the Director's request for evidence (RFE), the Petitioner submitted· 
contract with the listing its term as the date of signature, May 31, 2016, 
through June 30, 2019. 
Although the Petitionet submitted evidence, such as a letter from stating that the Petitioner 
is the Beneficiary's employer, the evidence in the record indicates that the mid-vendor has actual 
control over the Beneficiary's work. Regardless of the Petitioner's requirements for the Beneficiary 
to check in telephonically and provide status reports to its account manager, it appears here, that the 
Beneficiary will report to who, according to the MSA, outlines the name and location of 
the end-client, the nature of the work to be performed, and the time period for w·hich it will contact 
the Beneficiary. 
Further, we note that the Petitioner classified the proffered position on the labor condition 
application (LCA) at a Level I wage (the lowest of four assignable wage levels).4 This wage rate 
indicates that the Beneficiary will be closely supervised and her work closely monitored and 
reviewed for accuracy, and that she will receive specific instructions on required tasks and expected 
results. It is unclear how the Petitioner will provide this level of supervision through weekly phone 
calls and activity reports. It appears likely that a supervisor at the work location, an employee of the 
mid-vendor, will provide the level of supervision required for this position. 
The Petitioner contends that the Beneficiary is employed by the Petitioner and that the Petitioner 
controls the Beneficiary's salary and conditions of employment. While social security contributions, 
worker's compensation contributions, unemployment insurance contributions, federal and state 
income tax withholdings, and other benefits are still relevant factors in determining \Vho will contl'ol 
the Beneficiary, other incidents of the relationship, e.g., \Vho will oversee and direct the work of the 
Beneficiary, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Without full disclosure of all of the 
relevant factors, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
4 
A Level I 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 she will be closely supervised and her work 
closely monitored and reviewed for accuracy; and (3) that she will receive specific instructions on required tasks and 
expected results. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage Determination Policcv Guidance, 
Nonagric. Immigration Programs (rev. Nov. 2009), available at http://tlcdatacenter.com/download/ 
NPWHC~Guidance~Revised~ll~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. 
7 
Matter of S-S-, Inc. 
Moreover, we cannot conclude that the claimed work for the Beneficiary will continue to exist for 
the duration of the requested H-1 B status period. 5 Throughout the record, the Petitioner. specifically 
stated that the proffered position is for a specific project for the end-client, located at the 
mid-vendor's site and provided information for the same. However, although the MSA with the 
mid-vendor and the accompanying SOW covers the requested time period, the mid-vendor's contract 
with the end-client falls short by at least three months. We note that the mid-vendor's contract with 
the end-client states that the contract may be extended for two additional 12-month periods; 
however, we cannot assume that they will do so. We also cannot assume that the Beneficiary will 
continue to work at the mid-vendor's site on other projects, if the contract with the specified 
end-client is not extended, as we cannot conclude that it will translate to the same work of the 
proffered position. 
Thus, even if it were found that the Petitioner would be the Beneficiary's United States employer as 
that term is defined at 8 C.F.R. § 214.2(h)(4)(ii), the Petitioner has not demonstrated that it would 
maintain such an employer-employee relationship for the duration of the period requested. 6 Merely 
claiming that the Petitioner exercises complete control over the Beneficiary, \Vithout evidence 
supporting the claim, does not establish eligibility in this matter. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Maller of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). 
Based on the tests outlined above, the Petitioner has not established that it will be a ''United States 
employer" having an "employer-employee relationship" \Vith the Beneficiary as an H-1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
5 On the Fonn 1-129, the Petitioner requested that the Beneficiary be granted H-1 B classification from October I, 2016, 
to September 23,2019. 
6 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative. or 
undetermined, prospective employment. The 1-1-1 B classification is not intended as a vehicle for an 
alien to engage in a job search within the United States, or for employers to bring in temporary foreign 
workers to meet possible workforce needs arising from potential business expansions or the 
expectation of potential new customers or contracts. To determine whether an alien is properly 
classifiable as an H-1 B nonimmigrant under the statute, the Service must first examine the duties of the 
position to be occupied to ascertain whether the duties of the position require the attainment of a 
specific bachelor's degree. See section 214(i) of the Immigration and Nationality Act (the "'Act"). The 
Service must then determine whether the alien has the appropriate degree for the occupation. In the 
case of speculative employment, the Service is unable to perform either part of this two-prong analysis 
and. therefore, is unable to adjudicate properly a request for H-I B classification. Moreover. there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
Petitioning Requirements for the H Nonimmigrant Classification, 63 Fed. Reg. 30,419. 30,419-20 (proposed June 4. 
1998) (to be codified at 8 C. F.R. pt. 214). While a petitioner is certainly permitted to change its intent with regard to 
non-speculative employment, e.g .. a change in duties or job location. it must nonetheless document such a material 
change in intent through an amended or new petition in accordance with 8 C.F.R. § 214.2(h)(2)(i)(E). 
8 
Matter C!f S-S-, Inc. 
II. SPECIALTY OCCUPATION 
We have also determined that the proffered position does not qualify as a specialty occupation. 7 
Specifically, the record does not establish that the job duties require an educational background, or 
its equivalent, commensurate with a specialty occupation. 8 
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) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the·position; or 
( 4) The nature of the specific duties [is] so specialized and complex that 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We 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. Chertoff; 484 F.3d 139, 147 (1st Cir. 2007) (describing 
7 Although some aspects of the regulatory criteria may overlap, we will address ·each of the criteria individually. 
8 The Petitioner submitted documentation to support 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. 
9 
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Matter of S-S-, Inc. 
"a degree requirement in a specific specialty " as "one that relates directly to the duties and 
responsibilities of a particular position "); Defensor, 201 F.3d at 387. 
In response to the RFE, the Petitioner submitted a letter from its mid-vendor, 
stated that the Beneficiary will carry out her duties at its principal otlice as a "Java Developer" for 
the project with its end-client, identified the following job 
duties for the proffered position: 
• Analysis, design , develop , deploy and support software application. 
• Analyze software requirements to determine feasibility of design within time and 
cost constraints. 
• Work with Business Analysts to gather, understand and/or clarify business • requirements. 
• Confer with systems analysts , engineers , programmers and others to design 
system and to obtain information on project limitations and capabilities, 
performance requirements and interfaces. 
• Java, C, C++ 
• Pig, 
HBase, Sqoop , Oozie 
• Spring, Struts, Weblogic Portal & Integration 
• Websphere 6.1 & 8, Web Logic 8.1 & 10.3, Tomcat 7.0 
• JSP, Struts, Java Page Flows , SOAP, JMeter 
• Map Reduce , HDFS, Hive. 
• JavaScript, HTML, Ajax, Google Web Toolkit 
• Core Java, JDBC , Servlets, JSP, Struts, Java Page Flows. 
While stated that the minimum entry requirement for the proffered position is a bachelor's 
degree, or its equivalent, in a directly or closely related field , the Petitioner specified that the 
minimum entry requirement for the proffered position is a bachelor's degree, or its equivalent, in 
engineering, computer science, or a directly related field, and work expenence in performing 
computer programming with JAVA and relevant tools. 
A. First Criterion 
We turn 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. To inform this inquiry, we recognize 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.9 
9 
All of our references are to the 2016-2017 edition of the Handbook , which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbo ok 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 USC IS regularly reviews the Handbook on the duties and 
10 
Matter ofS-S-, Inc. 
On the LCA submitted in support of the H-1B petition,,the Petitioner designated the proffered position 
under the occupational category "Computer Programmers" corresponding to the Standard 
Occupational Classification code 15-1131. 10 
The Handbook states the following with regard to the educational qualifications necessary for 
entrance into positions located within this occupational category: 
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. 
Most programmers specialize in a few programming languages. 
Education 
Most computer programmers have a bachelor's degree; however, some employers 
hire workers who have an associate's degree. Most programmers get a degree in 
computer science or a related subject. Programmers who work in specific fields, such 
as healthcare or accounting, may take classes in that field to supplement their degree 
in computer programming. In addition, employers value experience, which many 
students gain through internships. 
Most programmers learn a few computer languages while in school. However, a 
computer science degree gives students the skills needed to learn new computer 
languages easily. During their classes, students receive hands-on experience writing 
code, testing programs, fixing errors, and doing many other tasks that they will 
perform on the job. 
To keep up with changing technology, computer programmers may take continuing 
education and professional development seminars to learn new programming 
languages or about upgrades to programming languages they already know. 
Licenses, Certifications, and Registrations 
· Programmers can become certified in specific programming languages or for vendor-
specific programming products. Some companies require their computer 
programmers to be certified in the products they use. 
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 requireme.nt, or its equivalent, for entry. 
10 
As noted above, 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. 
II 
Matter ofS-S-, Inc. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
Computer Programmers, http://www.bls.gov/ooh/computer-and-information-technology/computer­
programmers.htm#tab-4 (last visited Apr. 5, 2017). 
The Handbook indicates that most computer programmers have a bachelor's degree in computer 
science or a related subject; however, it also reports that some employers hire workers with an 
associate's degree. See id. That is, the Handbook reports that individuals, who have less than a 
bachelor's degree in a specific specialty, or its equivalent, can obtain computer programmer positions. 
Thus, the Handbook ·s report is insufficient to conclude that simply by vitiue of its occupational 
classification the position qualifies as a specialty occupation. 
We have also reviewed the Petitioner's designation of the proffered position at a Level I wage for 
computer programmers, demonstrating that the proffered position is a comparatively low and 
entry-level position relative to others within the occupation. That is, in accordance with the relevant 
DOL explanatory information on wage levels, this wage rate indicates that the Beneficiary is only 
required to have a basic understanding of the occupation and canies expectations that the Beneficiary 
perform routine tasks that require limited, if any, exercise of judgment; that she would be closely 
supervised; that her work would be closely monitored and reviewed tor accuracy; and that she would 
receive specific instructions on required tasks and expected results. Thus, even if the proffered position 
incorporates duties of a computer programmer position, the Petitioner's designation of the position as a 
Level I position confirms that the position is at most a junior or entry-level computer programmer 
position which according to the Handbook would not require a bachelor's degree in the specific field of 
computer science. 
When the Handbook does not support the proposition that a protTered 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 this or one of the 
other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such case, it 
is the Petitioner's responsibility to provide probative evidence (e.g., documentation t1·om other 
objective, authoritative sources) that supports a finding that the particular position in question qualifies 
as a specialty occupation. Whenever more than one authoritative source exists, an adjudicator will 
consider and weigh all of the evidence presented to determine whether the particular position qualities 
as a specialty occupation. 
In that regard, we have reviewed the Petitioner's reference to O*NET OnLine's assignment of a Job 
Zone "Four" rating to the computer programmers occupation, which groups it among occupations 
for which "most ... require a four-year bachelor's degree, but some do not." O*NET OnLine 
Summary Report for "15-1131.00 Computer Programmers," 
https:/ /www.onetonline.org/link/summary/15-1131.00 (last visited Apr. 5, 20 17). However, O*NET 
OnLine does not indicate that four-year bachelor's degrees that may be required by Job Zone Four 
occupations must be in a specific specialty directly related to the occupation. Therefore, the O*NET 
OnLine information is not probative of the proffered position being a specialty occupation. 
12 
Matter of S-S-. Inc. 
The Petitioner has not established that the proflered position falls under an occupational category for 
which the Handbook, or other authoritative source, indicates that normally the minimum requirement 
for .entry is at least a bachelor's degree in a specific specialty, or its equivalent. The record lacks 
sufficient evidence to support a finding that the particular position proffered here, an entry-level 
computer programmer position (as indicated on the LCA), would normally have such a minimum, 
specialty degree requirement or its equivalent. The duties and requirements of the position as 
described in the record of proceeding do not indicate that this particular position protlered by the 
Petitioner is one for which a 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). 
B. 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 
show that its particular position is so complex or unique that it can be pert()fmed 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. 
1. 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) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As already discussed, the Petitioner has not established that its protTered position is one for which 
the Handbook (or other independent, authoritative source) reports an 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. In addition, there are no submissions from the 
industry's professional association indicating that it has made a degree a minimum entry 
requirement. 
13 
.
Matter ofS-S-, Inc. 
In support of its assertion that the degree requirement is common to the Petitioner's industry in 
parallel positions among similar organizations, the Petitioner submitted 11 two letters from similar 
organizations, and Each letter states that "a bachelor's degree in 
Computer Science, Engineering, or a closely-related field is commonly required for Computer 
Programmer Analyst (in the capacity of programmer) or parallel positions" at their companies. 
The Petitioner also submitted copies of advertisements for several positions at and 
two positiOns at While some of the advertisements submitted for positions at 
state that a bachelor's or higher degree is required, others do not list any educational 
requirements for the positions and identify required skills instead. Further, of the advertisements 
that require a bachelor's or higher degree, none identify a specific area of study for the degree. 
Furthermore, all of the advertisements list required experience, some specifying at least five years of 
experience required for the positions. The computer systems analyst positions at 
state that a master's degree in computer science, engineering, math, or a related field is required, 
along \Vith two years of experience for one position and eight months of experience for the other. 
Here, all of the advertisements require years of experience, some in addition to the bachelor's or 
higher degree. As noted above, the Petitioner has designated the protTered position at a Level I vvage 
on the LCA (the lowest of four assignable wage levels), a wage level for an entry-level position that 
only requires a basic understanding of the occupation, which is in contrast to each of the advertised 
positions that appear to be for more senior positions. For these reasons, it cannot be found that the 
advertisements support a finding that a bachelor's or higher degree in a specific specialty, or its 
equivalent, is common to the industry in parallel positions among similar organizations. 
The Petitioner has not satisfied the criterion of the first alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). 
2. 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 specit1c specialty, or its 
equivalent. 
The record here does not credibly demonstrate relative complexity or uniqueness as aspects of the 
proffered position. The evidence of record does not distinguish the proffered position as unique 
from or more complex than other computer programmer positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. 
11 
We note that while the Director stated that the Petitioner did not submit any evidence for this criterion, the record 
shows that the Petitioner submitted the evidence discussed herein at the time of filing the petition and on appeal. 
14 
Matter of S-S-, Inc. 
It does not credibly demonstrate relative complexity or uniqueness as aspects of the proffered 
position. Specifically, it is unclear hO\v the proffered position, as described,. necessitates the 
theoretical and practical application of a body of highly specialized knowledge such that a person 
who has attained a bachelor's or higher degree in a specific specialty or its equivalent is required to 
perform them. Rather, we find, that, the evidence of record does not distinguish the proffered 
position from other positions falling within the "Computer Programmers" occupational category, 
which, the Handbook indicates, do not necessarily require a person with at least a bachelor's degree 
in a specific speci~lty or its equivalent to enter those positions. 
First, the record does not credibly demonstrate exactly what the Beneficiary \Viii 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 "performing computer programming for IT application 
development life cycle, including initiation, requirements, design, build, test, implement and 
operations," the Petitioner does not demonstrate how the Java developer's duties described require 
the theoretical and practical application of a body of highly specialized knmvledge such that a 
bachelor's or higher degree in a specific specialty, or its equivalent, is required to perform them. 
For instance, here, the Petitioner stated that the proffered position requires a bachelor's degree in 
computer science, engineering, or a closely related field. The Petitioner also stated that experience is 
required and listed several skills and abilities it claims are also required in order to perform the 
duties, "which is only found in qualified candidate who has earned at least a Bachelor's degree in the 
fields specified." While these skills and abilities may be beneficial, or even essential, in performing 
certain duties of a computer programmer position, the Petitioner has not demonstrated how an 
established curriculum of the related courses leading to a baccalaureate or higher degree in a specitic 
specialty, or its equivalent, is required to perfom1 the duties of the proffered position. 
Additionally, we again note that the Petitioner has designated the proffered position as requmng 
only a Level I wage, that requires only a basic understanding of the occupation. 12 Given the 
Handbook's indication that computer programmers do not normally require at least a bachelor's 
degree in a specific specialty, or the equivalent, for entry, it is not credible that a position involving 
limited, if any, exercise of independent judgment, close supervision and monitoring, receipt of 
specific instructions on required tasks and expected results, and close review would contain such a 
requirement. Thus, the record lacks sufficiently detailed information to distinguish the proffered 
position as unique from or more complex than positions that can be performed by persons without at 
12 The issue here is that the Petitioner's designation of this position as a Level I position undermines its claim that the 
position is particularly complex, specialized, or unique compared to other positions within the same 
occupation. Nevertheless, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), such a 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 qualities 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 consideration but is not a substitute for a determination 
of whether a proffered position meets the requirements of section 214(i)( I) of the Act. 
15 
Matter ()/S-S-, Inc. 
least a bachelor's degree in a specific specialty or its equivalent. As the Petitioner does not 
demonstrate how the proffered position is so complex or unique relative to other computer 
programmer or Java developer positions that do not require at least a baccalaureate degree in a 
specific specialty or its equivalent for entry into the occupation in the United States, it cannot be 
concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
C. 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. 
In response to the RFE, the Petitioner stated that it has always employed IT professionals with at 
least a bachelor's degree, or foreign equivalent, in relevant fields. The Petitioner then provided 
information for 26 current and former employees that have previously been granted H -1 B status, 
along with proof of employment. All of the listed employees have either a bachelor's degree or 
master's degree in the following fields: electrical engineering, electronics and communications 
engineering, computer science, computer applications, eledronics and instrumentation engineering, 
information technology, mechanical engineering, engineering management, civil engineering, and 
business administration. The Petitioner also listed the duties performed by each of the employees. 
However, while some of the duties listed for the 26 employees appear to correlate to the duties listed 
for the proffered position, the Petitioner has not submitted sufticient information about the proffered 
position to demonstrate that it is the same or similar to those described for its other employees. The 
list of duties for the proffered position is vague and general and does not provide any actual insight 
to what the Beneficiary will do a· day-to-day basis, such that we can determine that the proflered 
position is similar to those of its other employees. 
The Petitioner also submitted several of its job advertisements for computer programmers to 
demonstrate that it normally requires a bachelor's degree in a specific specialty for this position. 
However, while each of the advertisements lists a requirement for a bachelor's or higher degree in 
engineering, computer science, or a closely-related field, they also specifically require 18 months to 
5 years of progressive work experience for the positions. As previously noted, the Petitioner has 
designated the proffered position as a wage Level I on the LCA (the lowest of four assignable wage 
levels), a wage level for an entry-level position that only requires a basic understanding of the 
occupation, which is in contrast to each of its advertised positions that appear to be for more senior 
positions. For these reasons, we cannot determine that the proflered position is the same or similar 
to the other positions described by the Petitioner such that we can conclude that the Petitioner 
normally requires a bachelor's degree in a specific specialty, or its equivalent tor this position. 
Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)( 4)(iii)(A)(3). 
16 
Matter of S-S-, Inc. 
D. 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 them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The Petitioner asserts that the job duties of the proffered position are specialized and complex. We 
refer to our earlier comments and findings with regard to the implication of the Petitioner's 
designation of the proffered position in the LCA as a Level I wage, and hence one not likely 
distinguishable by relatively specialized and complex duties. We have also reviewed the description 
of duties for the proffered position. While we understand that the Beneficiary must have technical 
knowledge in order to perform these duties, the Petitioner has not sufficiently explained how these 
duties require the theoretical and practical application of a body of highly specialized knowledge, 
and the 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 record does not include probative 
evidence that the duties require more than technical proficiency in the computer programming field. 
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). 
As the Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualities as a specialty 
occupation. 
III. CONCLUSION 
The appeal must be dismissed because the Petitioner did not establish that: (1) it will engage the 
Beneficiary in an employer-employee relationship; and (2) the proffered position qualifies as a 
specialty occupation. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-. Inc., ID# 3 I 9160 (AAO Apr. 6, 2017) 
17