dismissed H-1B Case: Computer Science

(b)(6)
DATE: JUN 0 5 2015 PETITION RECEIPT#: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110 1(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
I. INT RODUCTION 
On the Form I-129 visa petitiOn, the petitioner describes itself as a six-employee consulting 
company established in In order to employ the beneficiary in what it designates as a 
programmer analyst position at a salary of $68,000 per year,1 the petitioner seeks to classify her as a 
nonimmigrant worker in a specialty occupation pursuant to section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the evidence of record did not establish that the 
beneficiary qualifies to perform the duties of a specialty occupation. 
The record of proceeding before us contains the following: (1) the Form I -129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; (4) the director's letter denying the petition; and (5) Forms I-290B, Notice of Appeal or 
Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's basis for denying this petition. We will also address two additional, independent 
grounds, not identified by the director's decision, that we find also preclude approval of this 
petition ? Specifically, beyond the decision of the director, we find that the evidence in the record 
of proceeding does not establish that (1) the proffered position qualifies as a specialty occupation; and 
(2) the petitioner would have an employer-employee relationship with the beneficiary. Accordingly, 
the appeal will be dismissed, and the petition will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purview, the AAO follows the preponderance of the evidence standard as specified in the 
controlling precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), unless the law 
specifically provides that a different standard applies. In pertinent part, that decision states the 
following: 
1 The Labor Condition Application (LCA) submitted by the petitioner in support of the petition was certified 
for use with a job prospect within the "Computer Systems Analysts" occupational classification, 
SOC (O*NET/OES) Code 15-1121, and a Level I (entry-level) prevailing wage rate, the lowest of the four 
assignable wage-levels. 
2 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
* * * 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Card oza-Foncesca, 480 U.S. 421, 431 (1987) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
!d. at 375-76. 
We conduct our review of service center decisions on a de novo basis. See Soltane v. DOJ, 381 
F.3d at 145. In doing so, as noted above, we apply the preponderance of the evidence standard as 
outlined in Matter of Chawathe. Upon our review of the present matter pursuant to that standard, 
however, we find that the evidence in the record of proceeding does not support counsel's 
contentions that the evidence of record requires that the petition at issue be approved. Applying the 
preponderance of the evidence standard as stated in Matter of Chawathe, we find that the director's 
grounds for denial were correct. Upon our review of the entire record of proceeding, and with close 
attention and due regard to all of the evidence, separately and in the aggregate, submitted in support 
of this petition, we find that the petitioner has not established that its claims are "more likely than 
not" or "probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has 
not submitted relevant, probative, and credible evidence that leads us to believe that its claims are 
"more likely than not" or "probabli1 true. 
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III. PRELIMINARY OBSERVATIONS 
The petitioner has provided inconsistent information regarding the beneficiary's employment location. 
On the Form I-129, the petitioner stated that the beneficiary will not work off-site3 and left the box for 
employment location blank, indicating the employment work address is the same as the petitioner's 
address stated in Part I of the petition, which was 
California, " However, in response to the director's RFE, the petitioner stated that the 
beneficiary will not work in-house, rather she will work at the end-client location at 
_ 
California. The petitioner provided no explanation for the 
inconsistency. When a petition includes errors and discrepancies, those inconsistencies will raise 
serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the 
petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 4 
IV. SPECIALTY OCC UPATION 
As a preliminary matter and beyond the director's decision, we find that the proffered position does 
not qualify as a specialty occupation. The director denied the petition, finding that the evidence of 
record of proceeding did not establish that the beneficiary is qualified to perform services in a 
specialty occupation. However, a beneficiary's credentials to perform a particular job are relevant 
only when the job is found to qualify as a specialty occupation. U.S. Citizenship and Immigration 
Services (USCIS) is required to follow long-standing legal standards and determine first, whether 
the proffered position qualifies as a specialty occupation, and second, whether an alien beneficiary 
was qualified for the position at the time the nonimmigrant visa petition was filed. Cf Matter of 
Michael Hertz Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988) ("The facts of a beneficiary's 
background only come at issue after it is found that the position in which the petitioner intends to 
employ him falls within [a specialty occupation]."). 5 In the instant case, the record of proceeding 
does not establish that the proffered position qualifies as a specialty occupation. 
3 On the Form 1-129, the petitioner checked the box "No" to the question of whether the beneficiary would 
work off-site. 
4 In addition, the uncertainty regarding the beneficiary's actual employment location calls into question the 
validity of the LCA. 
5 The petitioner submitted an education evaluation finding that the beneficiary's foreign education is 
equivalent to a bachelor's degree in business administration. As the education evaluation is based on the 
beneficiary's foreign education alone, the beneficiary's experience is not relevant to the question of whether 
she has the equivalent of a U.S. bachelor's degree in business administration. Therefore, we find no reason to 
doubt that the beneficiary has the equivalent of a U.S. bachelor's degree in business administration as 
claimed in the education evaluation. Nevertheless, we note that a degree in business administration alone is 
insufficient to qualify the beneficiary to perform the services of a specialty occupation, unless the academic 
courses pursued and knowledge gained is a realistic prerequisite to a particular occupation in the field. The 
petitioner must demonstrate that the beneficiary obtained knowledge of the particular occupation in which he 
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To meet the petitioner's burden of proof in establishing the proffered positiOn as a specialty 
occupation, the evidence of record must establish that the employment the petitioner is offering to 
the beneficiary meets the following statutory and regulatory requirements. 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [(1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C. F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must also meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
or she will be employed. Matter of Ling, 13 I&N Dec. 35 (Reg. Comm'r 1968). Here, the petitioner has not 
done so. 
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As a threshold issue, it is noted that 8 C.P.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(1) of the Act and 8 C.P.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also 
COlT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); 
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) should logically be read as being necessary but not necessarily sufficient to 
meet the statutory and regulatory definition of specialty occupation. To otherwise interpret this 
section as stating the necessary and sufficient conditions for meeting the definition of specialty 
occupation would result in particular positions meeting a condition under 8 C.P.R. 
§ 214.2(h)(4)(iii)(A) but not the statutory or regulatory definition. See Defensor v. Meissner, 201 
P.3d 384, 387 (5th Cir. 2000). To avoid this result, 8 C.P.R. § 214.2(h)(4)(iii)(A) must therefore be 
read as providing supplemental criteria that must be met in accordance with, and not as alternatives 
to, the statutory and regulatory definitions of specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.P.R. § 
214.2(h)( 4 )(ii), U.S. Citizenship and Immigration Services (US CIS) consistently interprets the term 
"degree" in the criteria at 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher 
degree, but one in a specific specialty that is directly related to the proffered position. See Royal 
Siam Corp. v. Chertoff, 484 P.3d 139, 147 (1st_ Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-lB petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have regularly 
been able to establish a minimum entry requirement in the United States of a baccalaureate or 
higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -lB visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. US CIS must examine the 
ultimate employment of the alien, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position nor an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry 
into the occupation, as required by the Act. 
As recognized in Defensor v. Meissner, it is necessary for the end-client to provide sufficient 
information regarding the proposed job duties to be performed at its location(s) in order to properly 
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ascertain the minimum educational requirements necessary to perform those duties. See Defensor v. 
Meissner, 201 F.3d at 387-388. In other words, as the nurses in that case would provide services to 
the end-client hospitals and not to the petitioning staffing company, the petitioner-provided job 
duties and alleged requirements to perform those duties were irrelevant to a specialty occupation 
determination. See id. The court held that the former Immigration and Naturalization Service had 
reasonably interpreted the statute and regulations as requiring the petitioner to produce evidence 
that a proffered position qualifies as a specialty occupation on the basis of the requirements imposed 
by the entities using the beneficiary's services. !d. at 384. Such evidence must be sufficiently 
detailed to demonstrate the type and educational level of highly specialized knowledge in a specific 
discipline that is necessary to perform that particular work. 
Here, the record of proceeding in this case does not contain sufficient information from the end­
client, regarding the specific job duties to be performed by the beneficiary for that 
company. The petitioner has not established the substantive nature of the work to be performed by 
the beneficiary, which therefore precludes a finding that the proffered position satisfies any criterion 
at 8 C.P.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of that work that determines (1) 
the normal minimum educational requirement for the particular position, which is the focus of 
criterion 1; (2) industry positions which are parallel to the proffered position and thus appropriate 
for review for a common degree requirement, under the first alternate prong of criterion 2; (3) the 
level of complexity. or uniqueness of the proffered position, which is the focus of the second 
alternate prong of criterion 2; ( 4) the factual justification for a petitioner normally requiring a 
degree or its equivalent, when that is an issue under criterion 3; and (5) the degree of specialization 
and complexity of the specific duties, which is the focus of criterion 4. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.P.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. For this additional reason, the appeal will be dismissed and the petition denied. 
V. EMPLOYER-EMPLOYEE RELATIONSHIP 
Also beyond the director's decision, we will briefly discuss whether the petitioner has established 
that it meets the regulatory definition of a "United States employer" as that term is defined at 8 
C.F.R. § 214.2(h)(4)(ii). We reviewed the record of proceeding to determine whether the petitioner 
has established that it will have "an employer-employee relationship with respect to employees 
under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the 
work of any such employee." I d. 
More specifically, section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent 
part as an alien: 
subject to section 2126)(2), who is coming temporarily to the United States to 
perform services . in a specialty occupation described in section 
214(i)(1) .. . , who meets the requirements for the occupation specified in section 
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214(i)(2) .. . , and with respect to whom the Secretary of Labor determines and 
certifies to the [Secretary of Homeland Security] that the intending employer has 
filed with the Secretary [of Labor] an application under section 212(n)(1) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows (emphasis added): 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relati onship 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.P. R. § 214.2(h)(4)(ii); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional 
master-servant relationship as understood by common-law agency doctrine." Nationwide Mutual 
Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for 
Creative Non- Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 
751-752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 
(2003) (hereinafter "Clackamas"). As the common-law test contains "no shorthand formula or 
magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must 
be assessed and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting 
NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968)). 
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The petitioner claims that the beneficiary will be employed at the end-client : location. In 
support of this assertion, the petitioner submits an agreement and a work order between the 
petitioner and the middle-client. However, the record does not contain any agreements or 
similar probative evidence between and or between _ and the petitioner, 
outlining in detail the nature and scope of the beneficiary's employment at the end-client's location.6 
Therefore, the key element in this matter, which is who exercises control over the beneficiary, has 
not been substantiated. While the record contains a letter from asserting the petitioner's 
right to control the work of the beneficiary, simply going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of Soffici, 22 I&N Dec. at 165. The record contains insufficient evidence to demonstrate that the 
requisite employer-employee relationship exists between the petitioner and the beneficiary. 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control an alien beneficiary, other incidents of the 
relationship, e.g., who will oversee and direct the work of the beneficiary, who will provide the 
instrumentalities and tools, where will the work be located, and who has the right or ability to affect 
the projects to which the alien beneficiary is assigned, must also be assessed and weighed in order 
to make a determination as to who will be the beneficiary's employer. Without further evidence of 
all of the relevant factors, we are unable to properly assess whether the requisite employer­
employee relationship exists between the petitioner and the beneficiary. Therefore, the appeal is 
dismissed for this additional reason. 
VI. CONCLUSION AND ORDER 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd. 345 F.3d 
683; see alsoBDPCS, Inc. v. Fed. Communications Comm'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
6 It is not even clear from the evidence submitted that there is any obligation on the part of the end-client to 
provide any work for the beneficiary to perform. 
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The petition will be denied and the appeal dismissed for the above stated reasons. 7 In visa petition 
proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
7 As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding with regard to the approval of the H-lB petition.