dismissed H-1B Case: Computer Science

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF I- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : AUG. 30, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORK ER 
The Petitioner, a computer solutions developer and services provider , seeks to temporarily employ the 
Beneficiary as a 'java developer' ' under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section IOI(a)(I5)(H)(i)(b). 8 U.S.C. 
§ 1101(a)(l5)(H)(i)(b) . The H-lB program allows a U .S. emplo yer to temporaril y emplo y a qualified 
foreign worker in a position that requires both (a) the theoretical and practical application of a bod y 
of highly speciali zed knowledge and (b) the attainment of a bach elor ' 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 doe s not 
demonstrate that: (1) the proffered position qualifies as a specialty occup ation: and (2) the Petitioner 
will have an employer- emplo yee relationship with the Beneficiar y. 
On appeal , the Petitioner asserts that the Director erred by not considering previousl y submitt ed 
evidence. 
Upon de novo revi ew, we will dismiss the appe al. 
I. PROCEDURALBACKGROUND 
The Petitioner , located in California, stated on the H-1 B petition that the Beneficiar y 
will work full-time as a java developer at the off-site location of in 
Wisconsin. The Petitioner requested a three-year validit y period from October 2016 
through August 2019. On the labor condition application (LCA) 1 submitted in support of the H-1 B 
petition, the Petition er confirmed the Beneficiary ' s off-site placement at the 
location. 
1 
The Petitioner is required to submit a certified LCA to demonstrate that it will pay an H-1 B worker the higher of 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 <?{Simeio Soluti ons. LLC, 26 I&N Dec. 542, 545-546 (AAO 2015 ). 
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Matter of I- Inc. 
In its letter of support , the Petitioner stated that the Beneficiary will work at the offices of 
(End-Client A) through the vendor (Vendor I). In support of the 
H-IB petition, the Petitioner submitted its supplier agreement with Vendor L accompanied by a 
purchase order for the Beneficiary's services to End-Client A, who is identified as Vendor l's client. 
According to this purchase order, the Beneficiary 's services will be provided from the end of 
October 2015 to the end of December 2016 "to accomplish the following end result for the Client on 
the following Client Project: ,. 
The Petitioner then provided a list of job duties for the Beneficiary, and claimed that the proffered 
position requires "a bachelor's degree, or its equivalent, in engineering (computer. electrical. 
electronic), computer science, computer applications, or another closely related major." 
In its response to the Director's request for evidence, the Petitioner affirmed the Beneficiary's prior 
assignment as a java developer for End-Client A at its worksite in Wisconsin. However. 
the Petitioner advised that, "[s]ince the time of this tiling, the Beneficiary has been reassigned to a 
new project with [(End-Client T)], at [End-Client T's] offices located at 
WI The Petitioner asserted that it was not required to file an 
amended H-1 B petition or obtain a new LCA because "'the Petitioner has moved the Beneficiary 
within the same area of intended employment in the same position and with the same job duties ." 
Identifying the new vendor as (Vendor B). the Petitioner submitted its 
consulting services subcontract agreement with Vendor B, accompanied by a service order for the 
Beneficiary's "Java" services to a project named' from June 2016 to .June 2017 (extendable 
up to 3 years). 
The Director denied the petttton, concluding that the record did not demonstrate the specialty 
occupation nature of the Beneficiary's work for End-Client A, and the Petitioner's employer­
employee relationship with the Beneficiary. In doing so, the Director declined to consider the 
Petitioner's evidence concerning the Beneficiary's new assignment to End-Client T, explaining that 
such evidence represented material changes to the H-1 B petition. 
On appeal, the Petitioner refers back to the previously submitted subcontract agreement and service 
order with Vendor B, and claims that this documentation was sufficient to demonstrate the specialty­
occupation nature of the Beneficiary's work and the Petitioner 's employer-employee relationship 
with the Beneficiary. The Petitioner maintains that its H-1 B petition and LCA remain valid because 
no material changes resulted from the Beneficiary's reassignment. 
II. SPECIALTY OCCUPATION 
A. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S.C. § ll84(i)(l) , defines the term ·'specialt y occupation '' as an 
occupation that requires: 
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Matter of 1- Inc. 
(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: 
(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"); Def"ensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
B. Analysis 
Upon review, we find that the Petitioner has not demonstrated the availability of specialty 
occupation work pursuant to the original terms and conditions of this H-1 B petition and LCA. 
Simply stated, the Beneficiary will not be employed in the same, original capacity specified on the 
H-1B petition and LCA: to work for End-Client A through Vendor I. As the Petitioner admits. the 
Beneficiary has been reassigned to a different end-client and client worksite through a different 
vendor. The availability of work pursuant to the instant H -1 B petition and LC A ended when the 
original assignment ended. 
The regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking at 
the time the petition is tiled. See 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based 
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Matter of I- Inc. 
on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a 
new set of facts. See Matter r~f'Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg' I Comm'r 1978). 
A petitioner may not make material changes to a petition in an etlort to make a deficient petition 
conform to U.S. Citizenship and Immigration Services requirements. See Matter of1zummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm 'r 1998). 
Even if the Beneficiary's assignment with End-Client A were still available (which it is not), the 
Petitioner has not sufficiently demonstrated that such work was of specialty occupation caliber. That 
is because the Petitioner has not sufficiently demonstrated the substantive nature and other material 
elements of the Beneficiary's original assignment with End-Client A. 
The record lacks reliable evidence establishing the duties the Beneficiary would have performed for 
End-Client A. The Petitioner did not submit any documentation directly from End-Client A. As 
recognized by the court in Defensor, 201 F.3d at 387, where a beneficiary is to perform work for an 
entity other than the petitioner, evidence of the client company's job requirements is critical. The 
record is missing this critical evidence. 
While the Petitioner submitted its supplier agreement and purchase order with Vendor I, these 
documents are not corroborated by End-Client A. Moreover, these documents do not adequately 
detail the Beneficiary's job duties and other elements of his assignment. For example. the purchase 
order merely describes the Beneficiary's services as "to accomplish the following end result for the 
Client on the following Client Project: 2 The 
purchase order does not provide additional relevant information such as the specific job duties the 
Beneficiary was supposed to perform. the name and nature of his ''Assigned Projects," his exact 
work location, or even the minimum educational qualifications (if any) for the protlered position. 
Further, the purchase order indicates that the Beneficiary's assignment would have terminated no 
later than December 2016. However, on the H-1 B petition. the Petitioner requested a three-year 
validity period ending in August 2019. The Petitioner did not initially explain what the Beneficiary 
would do after the December 2016 termination date with End-Client A. For instance. the H-1B 
petition was not accompanied by information or documentation relevant to other end-clients at the 
time it was filed, and the certified LCA did not list any other end-client location other than End­
Client A's worksite. 
Accordingly, the record contains insufficient evidence to establish the substantive nature and other 
material terms and conditions of the Beneficiary's original assignment with End-Client A. We are 
therefore precluded from finding that the proffered position, as originally described in the H-1 B 
petition and LCA, satisfied any specialty-occupation criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), 
because it is the substantive nature of that work that determines ( 1) the normal minimum. educational 
requirement for entry into the particular position, which is the focus of criterion 1: (2) industry positions 
1 
The Petitioner did not sign the purchase order until March 2016, even though the Beneficiary's services were to begin 
in October 2015 and Vendor l's signature is dated October 2015. 
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Matter (?f !- Inc. 
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. 
For all the above reasons, we find that the Petitioner has not demonstrated that the Beneficiary 
would perform duties according to the original terms and conditions of the H-1 B petition and LCA. 
and that 
such work qualified for treatment as a specialty occupation. 
C. Material Changes 
We acknowledge the Petitioner's statements and documents regarding the Beneficiary's new 
assignment with End-Client T. However, we find insufficient evidence in the record to support the 
Petitioner's assertion that there has not been any material change to the Beneficiary's employment as 
a result of this reassignment. 
As discussed above, the record does not demonstrate all material elements of the terms and 
conditions of the Beneficiary's original assignment with End-Client A. This fundamental deficiency 
precludes us from making any legitimate comparison of that assignment to the Beneficiary's new 
assignment with End-Client T. 
Furthermore, we find that the same deficiencies that exist with the Petitioner's evidence pertaining to 
End-Client A also exist with the documents pertaining to End-Client T. More specifically, the 
record also lacks reliable evidence establishing the substantive nature of the Beneficiary's work and 
other material elements of his new assignment with End-Client T. There is no documentation 
directly from End-Client T. Nor is there detailed documentation from Vendor B regarding the terms 
and conditions of the Beneficiary's assignment, including his specific job duties for End-Client T. 
Notably, the Petitioner's service agreement with Vendor B states that "[t]he character and nature of 
Services shall be subject to the assignment and direction of [Vendor B's] staff." This language 
underscores the potentially changing nature of the Beneficiary's job duties, and the need for a 
sutlicient position description from the client company ultimately receiving the Beneficiary's 
services. See Defensor, 201 F.3d at 387. Again, the record does not contain this critical evidence. 
In addition, the service agreement provides that the Petitioner's personnel "shall provide the Services 
described in an Exhibit to this Agreement, also known as a Work Order, signed by both parties." 
But the accompanying "Service Order #915," which is neither an "Exhibit" nor a "Work Order." 
does not describe the actual services to be provided. In fact, under Section IlL •·services Provided," 
it says: "None Identified." Although the service order lists the project name as ' · and an 
unspecified "category" as "Java," it does not contain other relevant information such as the complete 
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Matter qf I- Inc. 
project name, the name of the end-client receiving the Beneficiary's services 3, exact work location, 
or the minimum educational qualifications (if any) for the position. 
Without full disclosure of all relevant facts, we are unable to understand the substantive nature of the 
Beneficiary's job duties, whether for End-Client A or End-Client T. Therefore, the Petitioner has 
not demonstrated that no material change occurred as a result of the Beneficiary's new assignment. 4 
The Director did not err by declining to consider the Petitioner's evidence concerning the 
Beneficiary's new assignment. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, the Petitioner has not demonstrated that it would have and maintain an employer-employee 
relationship with the Beneficiary. 
A. Legal Framework 
Section 10l(a)(l5)(H)(i)(b) of the Act defines an H-IB nonimmigrant, m pertinent part, as an 
individual: 
[S]ubject to section 212U)(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 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 tiled with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor. or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States: 
(2) Has an employer-employee relationship with re.spect to employees 
under this part. as indicated by the fact that it may hire. pay. fire. 
supervise. or otherwise control the ·work ofany such employee: and 
' Without more, simply listing the project name as ·• is insufficient to establish that is the 
actual end-client, as claimed. 
4 If and when there is any material change to the terms and conditions of H-1 B employment, the regulations require a 
new or amended petition and LCA to be filed. See 8 C.F.R. § 214.2(h)(2)(i)(E): 8 C.F.R. § 214.2(h)(ll)(i)(A); Simeio 
Solutions, 26 I&N Dec. 542. The Petitioner has not demonstrated its compliance with this requirement. either. 
Matter of 1- Inc. 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act, 56 Fed. Reg. 61,111,61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
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-1 B visa classification. 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." 
!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. ofAm., 390 U.S. 254, 258 (1968)). 
B. Analysis 
As detailed above, the record of proceedings lacks suf1icient documentation evidencing the nature of 
the position and all other material terms and conditions of the Beneficiary's proposed 
employment. We again recall the lack of documentation issued directly by any end-client. We also 
recall the vague language contained in the vendor-issued documentation. Given these deficiencies. 
the Petitioner has not established who has or would have actual control over the Beneficiary's work 
or duties, or the condition and scope of his services. In other words, the Petitioner has not 
established whether it has made a bona tide offer of employment to the Beneficiary based on the 
evidence of record, or that the Petitioner would have and maintain an employer-employee 
relationship with the Beneficiary for the duration of the requested employment period. See 8 C. F. R. 
§ 214.2(h)(4)(ii) (defining the term "United States employer'' and requiring the Petitioner to engage 
Matter (?f 1- Inc. 
the Beneficiary to work such that it would have and maintain an employer-employee relationship 
with respect to the sponsored H-1 B nonimmigrant worker). 
We observe that the Petitioner is located in California, while the Beneficiary has been working off­
site in Wisconsin. Considering this distance, it is not evident how the Petitioner directs, supervises. 
and otherwise controls the Beneficiary's substantive daily work. The Petitioner has not explained 
and documented such aspects as who the Beneficiary's immediate supervisor is and his or her 
position with the Petitioner, where this individual works from, and how this individual obtains 
information about the Beneficiary's off-site work. 
The Petitioner repeatedly highlights language in its service contract with Vendor B stating, for 
example, that "[a]ny person selected or utilized by [the Petitioner] to perform Services for [Vendor 
B] shall be employee of [the Petitioner] and not an employee of [Vendor B].'' However, this 
language characterizing the Beneficiary as the Petitioner's ·'employee'' is not controlling for H-1 B 
purposes. 8 C.F.R. § 214.2(h)(4)(ii). For H-1B purposes, the Petitioner must be an "employer" 
having an "employer-employee relationship" with the Beneficiary, as ultimately indicated by the fact 
that it can control his work. 8 C.F.R. § 214.2(h)(4)(ii). In fact, other language in the same service 
contract undermines the Petitioner's purported control over the Beneficiary, particularly the 
provision that "[t]he character and nature of Services shall be subject to the assignment and direction 
of [Vendor B's] staff." 
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 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 
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, the Petitioner is unable to demonstrate that the requisite employer-employee 
relationship between the Petitioner and the Beneficiary existed at the time of tiling. and would 
continue to exist for the entire validity period requested. 
IV. CONCLUSION 
The Petitioner has not demonstrated that specialty occupation caliber work exists for the Beneficiary 
pursuant to the original terms of the H-1 B petition and LCA, and that the Petitioner would have and 
maintain an employer-employee relationship with the Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of I- Inc., ID# 804824 (AAO Aug. 30, 20 17)