dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re : 8429409 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 22, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "Java developer" 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 Petitioner will have an employer-employee relationship with the 
Beneficiary; and (2) the proffered position qualifies as a specialty occupation . 
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. Legal Framework 
Section 214(i)(l) of the Act, 8 U.S .C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the 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 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 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 
2 
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 Texas, stated that the Beneficiary would work at the end-client's 
location in Georgia, pursuant to contracts executed between the Petitioner and the primary vendor, 
and the primary vendor and the secondary vendor, and between the secondary vendor and the end­
client. The path of contractual succession therefore appears to be as follows: 
Petitioner ➔ Primary Vendor ➔ Secondary 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 Georgia. In support of this assertion, the Petitioner submitted an Addendum 
to a Consulting Services Agreement (CSA) between the Petitioner and the primary vendor. Notably, 
the Petitioner did not submit the referenced CSA. Moreover, the Petitioner only provided the first 41 
pages of the 57-page addendum and did not include the page that bears the Petitioner's and the primary 
vendor's signatures. The Petitioner also 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 Java developer, 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, along with an addendum to the work order, executed 
between the Petitioner and the primary vendor. 2 Although the work order mentions the Beneficiary, 
it does not reference the job title of the proffered position; or the end-client. In fact, the work order 
states that the end-client is the secondary vendor. Moreover, the work order states that the 
Beneficiary's services will begin in October 2018 and "shall remain in effect until the date specified 
above or until work is completed to the satisfaction of [ the primary vendor] or terminated pursuant to 
the Consulting Services Agreement." The work order does not state an anticipated end date. 
1 The Petitioner submitted documentation to suppmt the H-lB 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. 
2 Though acknowledged, the second addendum to the work order does not demonstrate the Petitioner's eligibility at the 
time of filing because it was executed in July 2019, approximately two months after the petition was filed and 
approximately one month after the Director issued her request for additional evidence. 
U.S. Citizenship and Immigration Services (USCTS) regulations affirmatively require a petitioner to establish eligibility 
for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § I 03.2(b )(I). A visa petition may not be approved 
based on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 T&N Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCTS requirements. Sec Matter of Izummi, 22 
I&N Dec. 169, 176 (Assoc. Comm'r 1998). The second addendum to the work order therefore carries little evidentiary 
weight. 
3 
In addition, the Petitioner submitted an Agency Agreement, along with an addendum to the agreement, 
executed between the Petitioner and the primary vendor. Again, the Petitioner has not established 
these documents' 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 Java developer, 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. 
Moreover, the Petitioner provided a Supplier Relationship Agreement (SRA) executed between the 
primary vendor and the secondary vendor. Notably, the Petitioner only provided two pages of this 
document. The agreement states that "[ d]etails regarding the Deliverables and Services are provided 
in Statements of Works (SOWs)." However, the record does not contain such an SOW. Absent an 
executed SOW (or similar agreement such as a work order), the SRA alone creates no obligation on 
the part of the vendor - let alone the end-client - to provide the position described in the petition. The 
SRA alone is a general agreement for the primary vendor to provide personnel to the secondary vendor. 
The SRA 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. 
The Petitioner also submitted an Agreement Change document executed between the secondary 
vendor and the end-client. The Agreement Change states that it "amends the existing Software 
Development and Maintenance Service Agreement (SDMSA) between [the secondary vendor] and 
[the end-client]." Notably, the Petitioner did not submit the referenced SDMSA. Moreover, the 
Agreement Change states that "[t]he purpose of this Agreement change is to implement the Price 
Modifications (as outlined in Section 2.1) and Term Changes effective as of September 2018 and to 
effect a 5 year extension which will expire on August 30, 2023." 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; or the job duties and tasks to be performed by a Java developer, the 
proffered position. This document also does not 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 for the duration of the requested validity 
period. 
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. 3 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. 4 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. 
3 Though acknowledged, the letters from the Petitioner, the vendors, and the end-client do not serve to fill this gap, as they 
are not evidence of an obligation on the part of the end-client to provide the position the Petitioner describes. 
4 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. See. e.g., 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4. 1998). 
4 
Beyond the speculative nature of the petition in general, the record does not establish the substantive 
nature of the proffered position. The Petitioner submitted an affidavit and email from the end-client's 
manager, software engineer. Notably, the Director questioned whether the individual who prepared 
this affidavit and email is an authorized official of the end-client who would be involved in the 
Beneficiary's placement. However, instead of addressing the Director's stated concern on appeal by 
submitting additional evidence regarding this signatory's authority to make attestations on behalf of 
the end-client, the Petitioner elects instead to double-down on the documentation. The Petitioner's 
failure to address the Director's stated concern about these documents raises questions as to the 
reliability of its evidence. At minimum, it raises questions as to the actual, substantive nature of the 
proffered position. 
Moreover, even if we were to accept the affidavit and email as reliable evidence from the end-client, 
they do not establish the substantive nature of the proffered position. Specifically, we observe that the 
secondary vendor's and the end-client's job duty descriptions contain verbatim language. The 
verbatim language found in the duty descriptions in the documents from the end-client and the 
secondary vendor raise questions regarding whether the end-client's signatory actually wrote the 
description 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. 
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. 
That is, neither the Petitioner nor the end-client have sufficiently explained how some of the tasks 
require a bachelor's degree in a specific specialty, or its equivalent, such as: 
• Involved in all phases of SDLC implementation, including analysis, design, development, 
integration, and testing of application modules. 
• Involved in developing web-based applications and expertise in implementing Object Oriented 
Programming (OOPS) with JAVA and J2EE. 
• Integrated Spring and Hibernate ORM framework. 
• Involved in the application development using Spring MVC module. 
• Support formal testing and resolve test defects. 
• Recommend changes to improve established Java application processes and develop technical 
design for application development. 
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. 
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. 
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Because the Petitioner has not established the substantive nature of the 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. 
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." 
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. 
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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 Texas, would supervise the work 
performed by the Beneficiary at the end-client's location in Georgia. In fact, the Petitioner states in 
its itinerary that the Beneficiary's supervisor is an end-client manager. On appeal, the Petitioner states 
it "has shown that the Beneficiary is under direct supervision as shown by weekly progress 
conferences, reporting documents, performance reviews .... " However, the Petitioner did not include 
such documents in the record. Thus, the Petitioner has not established that it will have an employer­
employee relationship with the Beneficiary. For this additional reason, the petition is not approvable. 
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. 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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