dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re: 5556665 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 23, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as a "cloud deployment engineer" 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: (I) 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. 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 California, stated that the Beneficiary would work at the 
end-client's location in Florida, 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 Florida. In support of this assertion, the Petitioner submitted a Master 
Service Agreement (MSA) 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 cloud 
deployment engineer, 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 states that the Beneficiary's services as a cloud deployment engineer will be needed at the 
end-client's location in Florida beginning in November 2017 until November 2020. While the work 
order does reference the Beneficiary, the end-client, and the job title, it does not reference the job 
duties and tasks to be performed by a cloud deployment engineer. Moreover, the work order indicates 
that the Beneficiary's services will end prior to the requested H-lB end date. Notably, the work order 
was signed by the first vendor in November 2017, but the Petitioner did not sign it until a year later in 
November 2018. 
The Petitioner provided letters from the first vendor and the second vendor. The letters state that "due 
to confidentiality obligations" between the first vendor and the second vendor, and the second vendor 
and the end-client, the vendors cannot provide copies of the agreements and work orders. While a 
petitioner should always disclose when a submission contains confidential commercial information, 
the claim does not provide a blanket excuse for a petitioner not providing such a document if that 
document is material to the requested benefit. 2 Although a petitioner may always refuse to submit 
confidential commercial information if it is deemed too sensitive, the petitioner must also satisfy the 
burden of proof and runs the risk of a denial. Cf Matter of Marques, l 6 I&N Dec. 314 (BIA 1977) 
1 The Petitioner submitted documentation to support the H-1 B 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 Both the Freedom of Information Act and the Trade Secrets Act provide for the protection of a petitioner's confidential 
business information when it is submitted to USCTS. See 5 U.S.C. § 552(b)(4), 18 U.S.C. § 1905. Additionally, the 
petitioner may request pre-disclosure notification pursuant to Executive Order No. 12,600, "Predisclosure Notification 
Procedures for Confidential Commercial Information." Exec. Order No. 12,600, 52 Fed. Reg. 23,781 (June 23, 1987). 
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(holding the "respondent had every right to assert his claim under the Fifth Amendment[; however], 
in so doing he runs the risk that he may fail to carry his burden of persuasion with respect to his 
application."). 
These documents - the MSA and the work order - 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; 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 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. 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. 
Here, the record lacks substantive documentation from the end-client regarding not only the specific 
job duties to be performed by the Beneficiary, but also information regarding whatever the client may 
or may not have specified with regard to the educational credentials of persons to be assigned to its 
project. The record does not contain probative documentation on this issue from ( or endorsed by the 
end-client), the company that will actually be utilizing the Beneficiary's services (according to the 
Petitioner) that establishes any particular academic requirements for the proffered position. 
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). 
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The letters from the vendors are also insufficient to establish the substantive nature of the proffered 
position, let alone demonstrate that it is a specialty occupation. Upon review, we observe that the first 
vendor's and the second vendor's job duty description contain verbatim language. The verbatim 
language found in the duty descriptions in the letters from the first vendor and the second vendor raise 
questions regarding whether the letters' signatories actually wrote the descriptions, which limits their 
persuasive value. Moreover, they do not purport to explain what the Beneficiary would actually be 
doing, but instead describe duties of "typical" positions located within the occupational category, 
which does little to assist us in understanding how the Beneficiary would spend his time. 
Without documents from the end-client that sufficiently provide pertinent information such as the 
Beneficiary's assigned project and detailed duties to demonstrate what he will actually do on a day­
to-day basis, we cannot determine the substantive nature of the proffered position. As the Petitioner 
has not established the substantive nature of the work to be performed by the Beneficiary, this 
precludes a conclusion 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 (1) the normal 
minimum educational requirement for 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 
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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 California, would supervise the work 
performed by the Beneficiary at the end-client's location in Florida. In fact, the record shows that the 
Petitioner has provided inconsistent information regarding the Beneficiary's supervisor. For instance, 
in its itinerary, the Petitioner states the Beneficiary will be supervised byl [ a solutions 
architect. However, on appeal, the Petitioner states tha~ [ the human resources manager, 
will supervise the Beneficiary. There is no explanation in the record for these inconsistencies. 
On appeal, the Petitioner states that '1 I will closely supervise the Beneficiary's work, 
assign specific instructions on required tasks and expected results, and closely monitor and review the 
Beneficiary's work for accuracy through daily and weekly video meetings and webinars with the 
Beneficiary." In addition, the Beneficiary will be required to do an "end-of-week check-in" via weekly 
time sheets. The Petitioner also submitted a blank bi-weekly status reports and a blank employee 
performance review. However, the Petitioner does not explain how such weekly time sheets and bi­
weekly status reports would translate to performance standards, how they are used for assessing and 
evaluating the Beneficiary's work, and/or the criteria for determining bonuses and salary adjustments. 
The record does not contain any farther specific information from the Petitioner regarding if and when 
the reports are reviewed or analyzed; the methods used for assessing the reports; any instructions 
provided to the Beneficiary regarding the reports; the consequences, if any, of failing to prepare the 
reports; etc. Thus, the Petitioner has not demonstrated the probative value and relevance of its claim 
regarding the reports to the question presented here, i.e., whether the Petitioner will have the requisite 
employer-employee relationship with the Beneficiary. It appears that if the Petitioner were controlling 
the work of the Beneficiary, then the Petitioner would be directing the work to be completed, not 
requesting a report from the Beneficiary regarding his own duties or the end-client's plans for the work 
to be performed. Nor do any of the materials from the vendors reflect a meaningful and ongoing role 
for the Petitioner in directing the Beneficiary's day-to-day activities. Thus, the Petitioner did not 
sufficiently establish an employer-employee relationship. 
The record lacks sufficient consistent, probative documentary evidence to support the Petitioner's 
claim that it will control the Beneficiary's actual work. Without foll disclosure of all of the relevant 
factors, we are unable to properly assess whether the requisite employer-employee relationship will 
exist between the Petitioner and the Beneficiary. For this additional reason, the petition is not 
approvable. 
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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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