dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 6668060 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 6, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "programmer analyst" under the 
H-lB nonimmigrant classification for specialty occupations. See Immigration and Nationality Act 
(the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-lB program allows a 
U.S. employer to temporarily employ a qualified foreign worker in a position that requires both: (a) 
the theoretical and practical application of a body of highly specialized knowledge; and (b) the 
attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum 
prerequisite for entry into the position . 
The Director of the California Service Center denied the petition , concluding that the evidence of 
record does not establish that: (1) the proffered position qualifies as a specialty occupation; and (2) 
the Petitioner will have an employer-employee relationship with the Beneficiary. 
In these proceedings , it is the Petitioner 's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 
2012). Upon de nova review , we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address whether the evidence of record establishes that the proffered position qualifies 
as a specialty occupation . 
A. Law 
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: 
(]) 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 construe 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 "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
As recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. 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. Id. 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. 
B. Analysis 
Upon review of the record in its totality and for the reasons set out below, we conclude first that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
Specifically, the Petitioner has not established the substantive nature of the work that the Beneficiary 
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will perform, which precludes a finding that the proffered position satisfies any of the criteria at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 1 
The Petitioner, which is located in Ohio, stated that the Beneficiary would work at the end-client's 
location in California, pursuant to contracts executed between the Petitioner and the first vendor, 
between the first vendor and the second vendor, and between the second vendor and the end-client. 
The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ First Vendor ➔ Second Vendor ➔ End-Client 
We conclude first that the Petitioner has not established definitive, non-speculative employment for 
the Beneficiary. The current record is not sufficient to establish that the proffered position actually 
exists, let alone that it is a specialty occupation. Again, the Petitioner claims that the Beneficiary will 
work for the end-client in California. In support of this assertion, the Petitioner submitted a Master 
Contracting Agreement (MCA) executed between the Petitioner and the first vendor. The Petitioner 
has not established this document's relevance to the Beneficiary's assignment as it does not reference 
the Beneficiary; the job title of the proffered position; the job duties and tasks to be performed by a 
programmer analyst, the proffered position; or the end-client. Nor does the document reference the 
Petitioner's specific role with respect to the Beneficiary's day-to-day work with the end-client, or the 
expected duration of the Beneficiary's work for the end-client. 
The Petitioner also submitted a work order executed between the Petitioner and the first vendor. The 
work order shows that the Beneficiary will be providing services as a "QA analyst" for the end-client 
in California. It does not indicate that the Beneficiary will serve as a programmer analyst (as stated in 
the H-lB petition) but rather as a "QA analyst." The work order does not describe the duties of the 
"QA analyst" in order to determine whether they are sufficiently similar to those of the proffered 
position. Moreover, the work order shows that the Beneficiary's services will end in December 2019, 
which is approximately nine months after the requested H-1 B start date. 
In addition, the Petitioner provided a Subcontractor Agreement (SA) executed between the first vendor 
and the second vendor. The SA states that "[the second vendor] hereby engages SUBCONTRACTOR 
[the first vendor] to provide software development services described in the attached Exhibit A." 
However, the record does not contain an "Exhibit A" as referenced at item 1 of the SA. Absent an 
executed work order ( or similar agreement), the SA alone creates no obligation on the part of the 
vendor - let alone the end-client - to provide the position described in the petition. The SA alone is a 
general agreement for the first vendor to provide personnel to the second vendor's customers. The SA 
does not specify services for the Petitioner to provide; a job title to perform the services; the duties of 
a position with such a job title; academic requirements to perform such duties; or identify the 
Beneficiary or any other individual assigned to perform the duties. 
In response to the Director's request for evidence, the Petitioner submitted a Master Services 
Agreement (MSA) between the second vendor and the end-client. Similar to the MCA, the MSA does 
1 The Petitioner submitted documentation to support the H- IB petition, including evidence regarding the proffered position 
and its business operations. Although we may not discuss every document submitted, we have reviewed and considered 
each one. 
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not reference the Petitioner; the Beneficiary; the job title of the proffered position; or the job duties 
and tasks to be performed by a programmer analyst. Nor does the document reference the Petitioner's 
specific role with respect to the Beneficiary's day-to-day work with the end-client, or the expected 
duration of the Beneficiary's work for the end-client. 
Moreover, the Petitioner provided a purchase order executed between the second vendor and the end­
client. However, the purchase order also does not reference the Petitioner; the Beneficiary; the job 
title of the proffered position; or the job duties and tasks to be performed by a programmer analyst. 
Nor does the document reference the Petitioner's specific role with respect to the Beneficiary's 
day-to-day work with the end-client, or the expected duration of the Beneficiary's work for the end­
client. Therefore, the referenced documents are not sufficient to substantiate what type of work the 
Beneficiary would perform for the end-client. 
These documents are the only legal documents that purport to create any obligation to provide work 
for the Beneficiary to perform. They create no obligation on the part of the end-client. They do not 
establish the existence of a specialty occupation position at the end-client's worksite. In other words, 
there is no evidence of any obligation on the part of end-client to provide the position the Petitioner 
describes in this petition for the Beneficiary. There is little indication that this petition was filed for 
non-speculative employment. 2 If we cannot determine whether the position as described by the 
Petitioner actually exists, then we cannot ascertain its substantive nature, let alone determine whether 
it is a specialty occupation. 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. The Petitioner submitted letters from the vendors and the end-client. 
Upon review, we observe that the vendors' and the end-client's job duty descriptions contain verbatim 
language. The verbatim language found in the duty descriptions in the letters from the end-client and 
the vendors raise questions regarding whether the end-client's signatory actually wrote the 
descriptions and, therefore, whether it reflects the end-client's actual requirements. Where the work 
is to be performed for entities other than the petitioner, evidence of the client companies' job 
requirements is critical. Defensor, 201 F.3d at 387-88. 
2 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- lB classification on the basis of speculative, or undetermined, 
prospective employment. The H-lB 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-1 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). 
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Moreover, as recognized in Defensor, 201 F.3d at 387-88, 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 ascertain the minimum educational requirements necessary to perform those duties. In other 
words, as the employees in that case would provide services to the end-client and not to the petitioning 
staffing company, the job duties and alleged requirements to perform the duties that the Petitioner 
provided were irrelevant to a specialty occupation determination. See id. 
Regardless of whether the end-client's signatory actually wrote the duty description, the duty 
description does not provide sufficient information about the duties to determine their complexity. 
Below are the duties: 
► Provides expertise to develop, modify and maintain assigned programs. Monitors the 
operation of assigned programs and responds to problems by diagnosing and assisting 
application developers in fixing the issues. 
► Works concurrently on several projects, playing different roles including but not 
limited to analyzing business and technical requirements, designing and developing 
technical solutions, designing test automation frameworks for data validations and data 
analytics. 
► Partners with various Application Developers, Systems Analysts, Business Analysts, 
Delivery Owners, Product Owners and Application Architects to develop a robust 
Systems Integration test plan and validate the flow of the process. 
► Develop an automation roadmap, initiate the right framework and enhance the 
automation suite using Selenium, Appium and similar tools to validate and maintain 
application functionality for every build. 
► Conduct root cause analysis of performance issues and oversee system performance 
lifecycle and identify key metrics for performance improvements. Develop effective 
performance automation scripts and tests using tools and techniques to simulate large 
enterprise environments such as LoadRunner, JMeter or similar tools. 
► Create custom SQL Queries against the databases like Oracle, Sql Server to validate 
the data visualization screens and dashboards developed using Tableau. Provide 
solution for any data discrepencies or UI mismatches from technical requirements and 
specification documents to the dashboards. 
► Regularly evaluate available design solutions and identify areas of improvement. 
Coordinate various test-related activities for project delivery, identifying task 
dependencies and utilization of environments to ensure enterprise applications are free 
from defects. 
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Further, the record lacks sufficient detail and concrete explanation regarding the project for which the 
Beneficiary will be assigned, to establish the substantive nature of the work the Beneficiary will be 
performing for the end-client, and the associated applications of specialized knowledge that their 
actual performance will require. Nor does the record provide sufficient detail regarding the 
Petitioner's specific role with respect to the Beneficiary's day-to-day work while at the end-client site. 
In sum, the record contains insufficient evidence from the end-client to establish that specialty 
occupation work exists for the Beneficiary. Without contracts or agreements between all the parties 
that outline the terms and conditions of the Beneficiary's employment, we are not able to fully 
ascertain what the Beneficiary is expected to do and the substantive nature of the proffered position. 
Given this specific lack of evidence and the insufficient job descriptions contained in the record, we 
cannot determine the substantive nature of the work to be performed by the Beneficiary. 
Because the Petitioner has not established the substantive nature of definite, non-speculative work that 
the Beneficiary will perform for the stated end-client, we are unable to evaluate whether the proffered 
position satisfies any criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A), because it is the substantive nature of 
that work that determines ( 1) the normal minimum educational requirement for entry into 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. We therefore 
conclude that the record does not sufficiently establish the existence of a definite, non-speculative 
specialty occupation position. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether the Petitioner qualifies as an H-lB employer. The United 
States Supreme Court determined that where federal law fails to clearly define the term "employee," 
courts should conclude that the term was "intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 
503 U.S. 318, 322-23 (1992) (quoting Cmty.for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). 
The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry are 
the skill required; the source of the instrumentalities and tools; the location of the work; 
the duration of the relationship between the parties; whether the hiring party has the 
right to assign additional projects to the hired party; the extent of the hired party's 
discretion over when and how long to work; the method of payment; the hired party's 
role in hiring and paying assistants; whether the work is part of the regular business of 
the hiring party; whether the hiring party is in business; the provision of employee 
benefits; and the tax treatment of the hired party." 
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Id.; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. 
Co. of Am., 390 U.S. 254,258 (1968)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 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. 
As detailed above, the record lacks sufficient documentation evidencing what exactly the Beneficiary 
would do for the period of time requested. Even if the parties contracted for sufficient work, the record 
does not sufficiently establish how the Petitioner, located in Ohio, would supervise the work 
performed by the Beneficiary at the end-client's location in California. In fact, the record shows that 
the Petitioner has provided inconsistent information regarding the Beneficiar ervisor. In its 
offer letter, the Petitioner states that the Beneficiary will be supervised b However, 
the Petitioner's organizational chart shows the Beneficiary reporting to~---~-....., a technical 
~- In addition, the Beneficiary's performance review shows that it was completed by D 
L___J There is no explanation in the record for this inconsistency. 
In the letters from the vendors and the end-client, they state that the Beneficiary's "work progress is 
tracked by her employer using weekly stand up and scrum meetings that are conducted either online 
or in person or on telephone based upon convenience." These statements are not indicative of a level 
of control over the Beneficiary's substantive work consistent with an employer-employee relationship. 
The generalized assertions regarding control lack specificity and probative detail of the degree of 
supervision, direction, or control that the Beneficiary would receive from the Petitioner. Thus, the 
Petitioner has not sufficiently established an employer-employee relationship with the Beneficiary. 
III. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. The 
appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
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