dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-1-T- LLC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer cpmpany with three employees, seeks to temporarily employ the 
Beneficiary as a "serum master" under the H-1 B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(l5)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-1B 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. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in the 
decision. Upon de novo review, we will dismiss the appeal. 
I. 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; . 
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Matter of M-1-T- LLC. 
(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.P.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted 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). 
II. PROFFERED POSITION 
In the H-lB petition, the Petitioner stated that the Beneficiary will serve as a "serum master." In 
addition, the Petitioner stated that the Beneficiary would work for its end-client located at 
in California. In response to the Director's request for evidence (RFE), 
the Petitioner clarified the path of contractual succession as follows: Petitioner -7 
(vendor) -7 (second vendor) -7 (end-client). 
The Petitioner provided the following job duties for the position (verbatim): 
• Create, manage and communicate the necessary agile metries of the team (Release 
• Burnup, Sprint Burndown, and Velocity). 
• Manage and report on the readiness of the backlog. 
• Manage and report on the results of demos, retrospectives, and any other Serum 
ceremony, ensuring visibility and follow:-up on the results and the agreed actions. 
• Create, manage and maintain the team's serum room and any other physical 
artifacts needed for the team performances. 
• Manage and maintain virtual tools like Rally/ Agile central, the Obstacle Board, 
and 
any other collaboration media (e.g. wiki, Jive etc.) needed for the team's 
collaboration. 
• Collaborate with the program manager to support corporate processes, providing 
any necessary artifact required by the 
According to the Petitioner, the proffered position requires a bachelor's degree m computer 
applications, science, technology, engineering
, or a related field. 
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Matter of M-1-T- LLC. 
III. ANALYSIS 
For the reasons set out below, we have determined that the Petitioner has not demonstrated that the 
proffered position qualifies as a specialty occupation. Specifically, the record (1) does not describe 
the position's duties with sufficient detail; and (2) does not establish that the job duties require an 
educational background, or its equivalent, commensurate with a specialty occupation. 
As a preliminary matter, the Petitioner's claim that a bachelor's degree in science is a sufficient for 
the proffered position is inadequate to establish that it 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. There must be a close correlation 
between the required specialized studies and the position; thus, the mere requirement of a general 
degree, 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) ("The mere requirement of 
.a college degree for the sake of general education, or to obtain what an employer perceives to be a 
higher caliber employee, also does not establish eligibility."). Thus, while a general-purpose 
bachelor's degree in science 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., 484 F.3d at 147. 
Further, the Petitioner stated that a degree in one of several disparate fields (specifically: computer 
applications, science, technology, or engineering) is a sufficient for the position. Notably, in 
general, provided the specialties are closely related, e.g., finance and accounting, a minimum of a 
bachelor's or higher degree in more than one specialty is recognized as satisfying the "degree in the 
specific specialty (or its equivalent)" requirement of section 214(i)(l )(B) of the Act. In such a case, 
the required "body of highly specialized knowledge" would essentially be the same. 
·Since there must be a close correlation between the required "body of highly specialized knowledge" 
and the position, however, a minimum entry requirement of degrees in disparate fields, would not 
meet the statutory requirement that the degree be "in the specific specialty (or its equivalent)," unless 
the Petitioner establishes how each field is directly related to the duties and responsibilities of Jhe 
particular position such that the required "body of highly specialized knowledge" is essentially an 
amalgamation of these different specialties. 1 Section 214(i)( 1 )(B) of the Act (emphasis added). The 
Petitioner has not made this showing. On the basis of the proffered position's educational 
requirement, we cannot conclude that the proffered position qualifies as a specialty occupation. 
1 
While the statutory "the" and the regulatory "a" both denote a singular "specialty," we do not so narrowly interpret 
these provisions to exclude positions fiom qualif)ring as specialty occupations if they permit, as a minimum entry 
requirement, degrees in more than one closely related specialty. See section 214(i)(I)(B) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(ii). This also includes even seemingly disparate specialties providing, again, the evidence of record 
establishes how each acceptable, specific field of study is directly related to the duties and responsibilities of the 
particular position. 
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Matter ofM-1-T- LLC. 
In addition, as recognized by the court in Defensor, where the work is to be performed for entities 
other than the Petitioner, evidence of the client's job requirements is critical. Defensor, 201 F.3d at 
387-88. 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 highly specialized knowledge in a specific discipline 
that is necessary to perform that particular work. 
Here, the record lacks sufficient 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 sufficient probative documentation on this issue 
from (or endorsed by) 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. 
The Petitioner, thus, has not established the substantive nature of the work to be performed by the 
Beneficiary, which precludes a 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 (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. 
As the Petitioner has not established that it has satisfied 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. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
Finally, we will briefly address the issue of whether or not the Petitioner 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 
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Matter of M-1-T- LLC. 
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." 
!d.; 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. 
In this matter, a key element is who would have the ability to hire, fire, supervise, or otherwise 
control the work of the Beneficiary for the duration of the H-1B petition. Upon review of the record 
of proceedings, we find that the Petitioner has provided inconsistent information regarding the 
Beneficiary's supervisor. With the initial petition, the Petitioner submitted an itinerary for the 
Beneficiary, which states that director of sales and strategy for 
(the second vendor) will supervise the Beneficiary at the end-client location. However, in response 
to the RFE, the Petitioner stated that its information technology project manager, who in tum is 
supervised by its president, will supervise the Beneficiary. In addition, the Petitioner provided 
copies of the Beneficiary's monthly time sheets that have been signed by the president of the 
Petitioner. The Petitioner did not provide an explanation for this discrepancy. 
Furthermore, the record of proceedings lacks sufficient documentation evidencing what exactly the 
Beneficiary would do for the period of time requested or where exactly and for whom the 
Beneficiary would be providing services. 
In the instant matter, the Petitioner requested the Beneficiary be granted H-1B classification from 
October 2015, to October 2018. However, the Petitioner has not established the duration of the 
relationship between the parties. For instance, the itinerary for the Beneficiary states that her 
services will be needed from October 2015, to April 2016 (withpossible extensions). In addition, 
the Petitioner submitted an agreement and purchase order between itself and (the 
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Matter of M-1-T- LLC. 
vendor). The agreement states that it "shall commence on the date specified above and shall 
continue in effect with respect to each Purchase Order until terminated in accordance with the terms 
of this Agreement or of such Purchase Order ("the "Term")." The purchase order states the project 
start date as October 2015, and the end date as "6 Months with possibility of extension). Thus, it 
appears that the project may be completed in April2016. 
In response to the RFE, the Petitioner provided a letter from the vendor that states that the 
Beneficiary's "services will continue until August 31, 2017 with possible extensions as per the 
normal contract process." The Petitioner also submitted a letter from the second vendor that states 
that the "anticipated need for [the Beneficiary] is for 1 year" and that this "is an ongoing project." 
This letter also indicates that the project may be completed in 2017. 
On appeal, the Petitioner asserts that "[ e ]ven in the unlikely event that the project terminates 
prematurely, Petitioner is a sound business with a volume of clients and project to which it may 
assign the beneficiary." In support ofthis assertion, the Petitioner submits two service agreements 
and a document entitled "Upcoming Projects Documentation." However, a 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. 
Here, the record does not establish that the project will continue through October 2018. While 
the Petitioner may be able to eventually locate some work for the Beneficiary, it did not establish 
that the petition was filed for non-speculative work for the Beneficiary that existed as of the time of 
the petition's filing? There is insufficient documentary evidence in the record corroborating the 
2 The agency made clear long ago that speculative employment is not pennitted in the H-1 B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B 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. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless 
document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. 
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Matter of M-1-T- LLC. 
availability of work for the Beneficiary for the requested period of employment and, consequently, 
what the Beneficiary would do, where the Beneficiary would work, as well as how this would impact 
the circumstances of her relationship with the Petitioner. Thus, the evidence in this matter is 
insufficient to establish that the Petitioner qualifies as a United States employer, as defined by 
8 C.F.R. § 214.2(h)(4)(ii). 
V. CONCLUSION 
For the reasons outlined above, the Petitioner has not established eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-1-T- LLC., ID# 325907 (AAO Apr. 24, 2017) 
§ 214.2(h)(2)(i)(E).