dismissed H-1B Case: Computer Science

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OFE-T-S- , LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 2, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a four-employee company providing custom computer programmer services, seeks to 
temporarily employ the Beneficiary as a "software developer" under the H-lB nonimmigrant 
blassification 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-1 B 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, California Service Center, denied the petition. The Director concluded the Petitioner 
did not establish that the.proffered position qualifies .as a specialty occupation. Further, the Director 
found that the Petitioner did not demonstrate that it would maintain an employer-employee 
relationship with the Beneficiary during the requested period of the visa. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in denying the petition. 
Upon de novo review, we will dismiss the appeal. 
I. PROFFERED POSITION 
Th~ Petitioner states that the Beneficiary will perforn1 services at -its location in 
Minnesota for its client On appeal, submits the following 
duty description, identical to those previously submitted by the Petitioner on the record: 
• Analyze project data to determine specifications or requirements. 
• Design software applications and apply mathematical principles or statistical 
approaches to solve problems in scientific or applied fields . 
• Assess database performance. Developing testing routines or procedures. 
• Collaborate with others to determine design specifications or details. 
• Collaborate with others to resolve information technology issues. 
Matter of E- T-S-, LLC 
• Communicate project information to others and assign duties or work schedules to 
employees. 
• Identify information technology project resource requirements. 
• Manage information technology projects or systems activities. 
• Modify software programs to improve performance. 
• Monitor computer systems performance to ensure proper operation. 
• Prepare data for an~lysis. 
• Provide recommen'dations to others about computer hardware. 
• Provide technical support for software maintenance or use. 
• Supervise information technology personnel. 
In response to the Director's request for evidence (RFE), the Petitioner stated that the proffered 
position requires "a Bachelor's degree either in Computer Application, Computer Science, 
Engineering, Mathematics, Business Administration or [a] related field of study, to perform the 
above duties." 
II. 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 ofendeavor. 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 requirem'ent 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 r~equires a degree or its equivalent for the position; or 
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Matter of E-T-S-, LLC 
( 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). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.F.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 proposed 
position. See Royal Siam Corp. v. Cherto[f, 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 determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 
For H-1B approval, the Petitioner must demonstrate a legitimate need for an employee exists and 
substantiate that it has H-1 B caliber work for the Beneficiary for the entire period of employment 
requested in the petition. It is incumbent upon the Petitioner to demonstrate it has sufficient work to 
require the services of a person with at least a bachelor's degree in a specific specialty, or its 
equivalent, to perform duties at a level that requires the theoretical and practical application of at 
least a bachelor's degree level of a body of highly specialized knowledge in a specific specialty for 
the period specified in the petition. 
In this matter, although the Petitioner indicates that the Beneficiary will be employed at its worksite 
on a project for its client, the evidence of the record does not sufficiently support that 
this work will continue through the entire requested period. In the Form I-129, the Petitioner 
specified that the requested period of employment was from August 1, 2016, to June 30,2019. On 
appeal, the Petitioner submits a letter from the client stating that "this contract is for 36 
months with a strong possibility of extension." However, the assertion that the project will continue 
for three years is not supported by other evidence submitted on the record. For instance, a purchase 
order issued pursuant to master services agreement between the Petitioner and reflects 
that the engagement will begin September 19, 2016, continue for 12 months, and be "extendable." 
Further, the Petitioner provided an itinerary in response to the RFE which showed that the project 
would begin on October 1, 2016, and that its end date \vas "to be determined." Therefore, although 
the Petitioner provides a letter on appeal from the client asserting that the "contpct" will continue 
for three years, the actual contractual documentation provided on the record does not support this 
assertion. This discrepancy leaves question as to the actual duration of the project and whether the 
Petitioner has established work for the Beneficiary throughout the requested period. The Petitioner 
has not resolved these inconsistencies with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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Matter of E- T-S-, LLC 
The insufficient evidence relevant to demonstrating the proposed engagement of the Beneficiary 
throughout the requested period is particularly troubling in light of the evidence provided relevant to 
the Petitioner's operations. For instance, the Petitioner submits a 2015 IRS Form 1120 reflecting 
that the company earned only $268,612 and 'paid merely $29,645 in wages during that year. The 
Petitioner also states in the Form I-129 that it only has four employees, presumably including the 
Beneficiary and the company's referenced president. The minimal nature of the Petitioner's 
operations therefore leaves significant question as to whether the company has sufficient work to 
employ the Beneficiary in a specialty occupation throughout the requested period. 
We find that the Petitioner has not established non-speculative work for the Beneficiary at the time of 
the petition's filing for the entire period requested. USCIS 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. 103 .2(b )(1 ). 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 I&N Dec. 248 (Reg'l Comm 'r 1978). 
Moreover, the record of proceedings is absent sufficient information from the end-client regarding 
the specific job duties to be performed by the Beneficiary. As recognized by the court in Defensor, 
supra, where the work is to be performed for entities other than the petitioner, evidence of the client 
companies' job requirements is critical. See Defensor v. Afeissner, 201 F.3d at 387-388. 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 ~ighly specialized knowledge in a specific discipline that is necessary to 
perform that particular work. 
However, the duties provided by are identical to thos_~ previously submitted by the 
Petitioner and convey only general tasks and not the specific work and assignments to be completed 
by the Beneficiary. For example, the duty descriptions consist of vague duties that do not convey 
the position's actual day-to-day tasks on the proffered project, including "analyz[ing] project date to 
determine specifications," "design[ing] software applications and apply[ing] mathematical 
principles," "develop[ing] testing routines or procedures," "determin[ing] design specification or 
details," "resolv[ing] information technology issues," "coordinat[ing] software or hardware 
installation," among others. 
On appeal, the Petitioner submits a project plan detailing its proposed work for 
developing the ' Although this document provides 
details regarding 
this proposed project, including a reference to a team leader, a project coordinator, project manager, 
and a project team, it provides no explanation as to the Beneficiary's specific involvement. In fact, 
the document makes reference to a team of eight "programmers," but makes no reference to the role 
of any software development professionals. Indeed, the assertions in the project documentation 
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Matter of E-T-S-, LLC 
leave more questions in light of the evidence of the Petitioner's operations, as this evidence reflects 
that it employs only four individuals. 
As such, the record of proceedings, including the letter from its client does not contain a 
more detailed description explaining what particular duties the Beneficiary will perform on a day-to­
day basis, nor is there a detailed explanation regarding the demands, level of responsibilities , 
complexity, or requirements necessary for the performance of these duties (e.g., what body of 
knowledge is required to perform these duties). In fact, the duties of the proposed position state that 
the Beneficiary will "assign duties or work schedules to employees" and "supervise information 
technology personnel." However, the Petitioner does not detail or provide evidence of the 
subordinates or proposed positions he will oversee, and again, this assertion is questionable in light 
ofthe company's limited number of employees. 
Overall, the evidence of record is insufficient to establish the substantive nature of the work to be 
performed by the Beneficiary. We are therefore precluded from finding that 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 (I) the normal minimum educational requirement tor 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. 
Further, the Petitioner makes conflicting statements as to the specific bachelor's degree minimally 
required for the proffered position. In a support letter submitted with the petition, the Petitioner 
stated that the position required a bachelor's or master's degree in "computer science, information 
systems or engineering with emphasis in electronics, communications, business or computers 
applications." However, in response to the RFE, the Petitioner indicated that the position requires a 
· bachelor's degree in either "Computer Application, Computer Science, Engineering, Mathematics , 
Business Administration or [a] related field of study." Later in the same letter, the Petitioner 
asserted that "this job can be performed by someone with a "minimum" of a Bachelor's Degree." 
Therefore, the Petitioner has not clearly articulated a bachelor 's degree in a specific specialty 
required for the position, and in fact, states that "it is impossible to allocate a single degree major 
that all Computer Systems Analyst[s] should have." In fact, the Petitioner appears to indicate 
.several times on the record that a bachelor's degree of any kind would suffice. We note that the 
Petitioner, which attested on the submitted labor condition application that the proffered position is a 
software developer (applications) position, makes reference to other occupations and positions, 
mentioning "Computer Systems Analyst[s]" and "programmer analysts." This leaves further 
question as to the actual proffered position. In sum, the Petitioner's claimed entry requirement of at 
least a bachelor's degree in one of a variety of majors does not denote a requirement in a specific 
specialty. 
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Matter of E- T-S-, LLC 
Furthermore, the claimed requirement of a degree in such majors as "Business Administration" for 
the proffered position, without further specialization, is inadequate to establish that the proposed 
position qualifies as a specialty occupation. A petitioner must demonstrate that the proffered 
position requires a precise and specific course of study that relates directly and closely to the 
position in question. Since there must be a close correlation between the required specialized studies 
and the position, the requirement of a degree with a generalized title, such as business 
administration, without further specification, does not establish the position as a specialty 
occupation. Cf Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560 (Comm'r 1988). 
To prove that a job requires the theoretical and practical application of a body of highly specialized 
knowledge as required by section 214(i)(l) of the Act, a petitioner must establish that the position 
requires the attainment of a bachelor's or higher degree in a specialized field of study or its 
equivalent. USCIS interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require a 
degree in a specific specialty that is directly related to the proposed position. Although a 
general-purpose bachelor's degree, such as a degree in business or business administration, may be a 
legitimate prerequisite for a particular position, requiring such a degree, without more, will not 
justify a finding that a particular position qualifies for classification as a specialty occupation. Royal 
Siam Corp. v. Cherto_ff, 484 F.3d 139, 147 (1st Cir. 2007). 
As the Petitioner has not established that it satisfies any of the criteria at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A), it cannot be found that the proffered position qualifies as a specialty 
occupation. Therefore, the appeal must be dismissed and the petition denied for this reason. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
The Director also denied the petition concluding that the evidence of record does not establish that 
the Petitioner will be a "United States employer" having "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." 8 C.F.R. § 214.2(h)( 4)(ii). 
Given the other basis for denial set forth herein, we decline to address fully the Director's decision 
as to this issue. However, given certain discrepancies and insufficiencies relevant to the 
Beneficiary's employment with the Petitioner we affirm the Director's conclusion. 
First, we note that the Petitioner's agreement with its end-client 
paragraph 1, "Retention of Consultant": 
states the following in 
In the event that any Task Order associated with this Agreement shall designate a 
specific individual to perform the Services contemplated by this Agreement on behalf 
of the [Petitioner], [the Petitioner] agrees to assign such designated individual to the 
project or engagement described in the Task Order and that it will not voluntarily 
remove such designated individual from such project or engagement without prior 
written consent of the Company. 
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Matter of E-T-S-, LLC 
The aforementioned language leaves question as to whether the Petitioner retains full control over its 
employees, including the Beneficiary in the current matter when assigned to client projects. More 
specifically, this contractual language runs contrary to the Petitioner's assertion that it fully controls 
the assignment of work to the Beneficiary and his reassignment to other projects. 
In addition, the Petitioner provides insufficient explanation and evidence to demonstrate who will 
supervise the Beneficiary, in what form, and how often. The Petitioner states that the Beneficiary 
will be supervised by the company's president. However, the Petitioner provides no documentary 
evidence to support this assertion. Further, the project plan documentation on appeal makes no 
reference to the involvement of the president in supervising employees when assigned to clients. In 
fact, it references a team of eight employees and various positions, including a team leader, project 
coordinator, and a project manager, which all appear to be supervisory positions. These positions, 
along with the Beneficiary's, would be significantly mo~e than the four erpployees the Petitioner 
states it employs in the Form I-129. Therefore, the Petitioner's apparent lack of operations leaves 
question as to whether it has sufficient supervisory staff to oversee the Beneficiary's work for the 
client. Indeed, the Petitioner makes reference to "staffing services" and its provision of "contract 
employees," leaving further question as to the Beneficiary's proposed duties and whether these may 
be labor for hire services whereby the proffered position would be primarily overseen by the client. 
The Petitioner has not resolved these inconsistencies with independent, objective evidence pointing 
to where the truth lies. Matter ofHo, 19 I&N Dec. at 582, 591-92. 
As such, we affirm the Director's decision that tlie Petitioner has not established that it qualifies as a 
"United States employer" as defined at 8 C.F.R. § 214.2(h)(4)(ii) and the appeal will be dismissed 
for this additional reason. 
IV. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8l).S.C. § 1361. Here, that burden has not been met. 
ORDER:- The appeal is dismissed. 
Cite as Matter of E-T-S-, LLC, ID# 296681 (AAO Feb. 2, 2017) 
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