dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 6573363 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 5, 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 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&NDec. 799, 806 (AAO 
2012). Upon de nova review, we will dismiss the appeal. 
I. SPECIAL TY 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: 
(]) 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). 
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 
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 Florida, initially stated that the Beneficiary would work for end­
client C-I- at its location inl I Kentucky. In response to the Director's request for evidence 
(RFE), the Petitioner stated "given the tangible and ongoing logistics of business concerns, 
notwithstanding [U.S. Citizenship and Immigration Services] processing times, the Beneficiary will 
now be assigned to another ongoing project for end-client, [H-, Inc.,]" which is also located in 
I I Kentucky. The Petitioner farther stated that this new assignment is pursuant to contracts 
executed between the Petitioner and N-I- (first vendor), between the first vendor and T-C-S- (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 
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. 
2 
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 Kentucky. In support of this assertion, the Petitioner submitted a Vendor 
Agreement (VA) 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 Professional Services Agreement (PSA) executed between the first 
vendor and the second vendor. The PSA states: 
The specific services, technology skills, experience and educational qualifications 
required for the services and the relevant details of the Contractor Personnel assigned 
to fulfill the requirements, the required period of assignment, fees and charges payable 
to Contractor for the Services and any other pertinent information relative to such 
specific Services will be described in a statement of work ( each a "Statement of Work" 
or "SOW"). 
However, the record does not contain an SOW as referenced at item 2.1 of the PSA. Absent an 
executed SOW ( or similar agreement), the PSA alone creates no obligation on the part of the vendor 
- let alone the end-client - to provide the position described in the petition. The PSA alone is a general 
agreement for the first vendor to provide personnel to the second vendor's customers. The PSA 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. 
On appeal, the Petitioner provides a work order executed between the Petitioner and the first vendor. 
Although the work order mentions the Beneficiary and the end-client, it does not reference the job title 
of the proffered position; or the job duties and tasks to be performed by a programmer analyst, the 
proffered position. Moreover, the work order states that the Beneficiary's services will begin in 
October 2018 (tentative) and end 12 months later. It appears that the Beneficiary's services will end 
prior to the requested H-1 B validity period. 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 - the VA, PSA and work order - are the only legal documents that purport to 
create any obligation to provide work for the Beneficiary to perform. 2 They create no obligation on 
the part of the end-client; the end-client is not a party to any of the referenced agreements. They do 
not establish the existence of a specialty occupation position at the end-client's worksite. In other 
2 Though acknowledged, the letters from the Petitioner and the end-client do not serve to fill this gap, as they are not 
evidence ofan obligation on the part of the end-client to provide the position the Petitioner describes. 
3 
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. 3 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. First, we observe that 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. 
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. 
In the instant matter, the Petitioner submitted a letter from the end-client, which states that the 
Beneficiary is responsible for the following: 
Understand business requirements from the Business Requirement Document 
(BRD) for new requirements. Study the existing system and perform impact 
analysis. Preparing use case diagrams and Low level design. 
Responsible for Design, Development, Implementation and Unit Testing of 
Applications using Client/Server Technology and Reviewing Coding Standards. 
3 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 tempormy 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). 
4 
Review software designs and future implementations to identify possible issues 
during software/application operation. 
Conduct and review software load test, including review for infrastructure load and 
performance metrics to identify application code optimization and plan future 
hardware upgrades for expected software user of data growth. 
Provide code fix to existing applications to resolve production application/software 
issues reported by various business teams. 
Enhance applications by making code changes to existing applications to provide 
new functionalities to business. 
Work on designing and implementing new applications functionalities to improve 
and built capabilities for business and automate manual tasks to improve 
productivity of IT and business teams. 
Understand requirements from business teams and product owner develop new 
applications based on given specifications and deliver IT solutions within specific 
period. 
Code deployment in various environments like Test/QA/Prod following regular 
SDLC cycle. 
Provide support to architects in implementing proof of concepts for new IT 
solutions. 
The generally-stated duties provided by the end-client without the context of a specific project and the 
Beneficiary's actual role in the project adds little to our understanding of the Beneficiary's duties. The 
job description lacks sufficient detail and concrete explanation 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. 
Furthermore, we observe that the end-client does not state the educational requirements for this 
position. As previously noted, 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. 
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 folly 
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 
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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 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation, we need not 
fully address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings. 4 
Specifically, the Petitioner has not demonstrated that it will have a valid employer-employee 
relationship with the Beneficiary. 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. 
4 In reviewing a matter de nova, we may identify additional issues not addressed in the Director's decision. See Spe!lcer 
EJ1te1prises, IJ1c. v. UJ1ited States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) ("The 
AAO may deny an application or petition on a ground not identified by the Service Center."). 
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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 Florida, would supervise the work 
performed by the Beneficiary at the end-client's location in Kentucky. The Petitioner submitted a 
letter from the end-client, which states that the Beneficiary's primary employer is the Petitioner as it 
is "responsible for her salary, benefits and training needed to perform [her] job duties at the worksite, 
in addition to any discretionary decision making such as hiring, firing, controlling and performances 
evaluations." However, the Petitioner does not submit sufficient documentation regarding how the 
Petitioner will control the Beneficiary's work and will administer the work assignments when the 
Beneficiary is working off-site. The Petitioner does not indicate any employee that will supervise the 
Beneficiary located at the end-client's work site. Therefore, 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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