dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
In Re : 6757361 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 30, 2020 
The Petitioner, a custom computer applications development, testing, and implementation company, 
seeks to temporarily employ the Beneficiary as a "computer systems architect" 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 California Service Center Director denied the petition, concluding that (1) the Petitioner had not 
established that the proffered position is a specialty occupation and that (2) the Petitioner did not 
establish that it would engage the Beneficiary in an employer-employee relationship . 
On appeal, the Petitioner asserts that the Director erred and that the proffered position is a specialty 
occupation and that it will maintain an employer-employee relationship with the Beneficiary. 
Upon de nova review, we will dismiss the appeal. 1 
I. 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 
1 A petitioner must establish that it meets each eligibility requirement of the benefit sought by a preponderance of the 
evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 (AAO 2010). 
(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. 2 
B. Specialty Occupation Analysis 
The Petitioner stated that the Beneficiary will be employed as a "computer systems architect" and that 
a minimum of a bachelor's degree in mathematics, computer science, information technology, 
computer applications, or a closely related field is required for entry into the position. In addition to 
this, the Petitioner requires a "minimum of three years of experience in computer architecture, data, 
analysis, design, development, testing, and implementation of programs," along with various technical 
skills and proficiencies in math, reading, and writing. The Petitioner provided multiple lists of duties 
and while we will not list each duty here, we have reviewed and considered each one. 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 record 
does not include (1) sufficient consistent, probative evidence establishing that the job duties require 
an educational background, or its equivalent, commensurate with a specialty occupation; and (2) 
sufficient evidence to establish the existence of non-speculative employment. 3 
2 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). 
3 The Petitioner submitted documentation to suppmt the H-lB petition, including evidence regarding the proffered position 
and its business operations. While we may not discuss every document submitted, we have reviewed and considered each 
one. 
2 
1. First Criterion 
The criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(I) requires that a baccalaureate or higher degree in a 
specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular 
position. To inform this inquiry, we recognize the Department of Labor's (DOL) Occupational 
Outlook Handbook (Handbook) as an authoritative source on the duties and educational requirements 
of the wide variety of occupations that it addresses. The Petitioner designated the proffered position 
on the labor condition application (LCA) as a Standard Occupation Classification (SOC) code 15-
1199 "Computer Occupations, All Other" occupation. In response to the Director's request for 
evidence (RFE) the Petitioner asserted that the duties of the proffered position are consistent with the 
duties of the "Computer Systems Engineers/ Architects" corresponding to SOC code 15-1199 .02. 4 
The Handbook is a career resource offering information on hundreds of occupations. However, there are 
occupational categories which the Handbook does not cover in detail, and instead provides only summary 
data. 5 The subchapter of the Handbook titled "Data for Occupations Not Covered in Detail" states, in 
relevant part, that the "[t]ypical entry-level education" for a variety of occupations within the category of 
"[ c ]omputer and mathematical occupations" is a "Bachelor's degree," without indicating that the 
bachelor's degree must be in a specific specialty.6 Thus, the Handbook is not probative in establishing 
that these positions comprise an occupational group for which the normal minimum requirement for entry 
is at least a bachelor's degree in a specific specialty, or its equivalent. 
The Petitioner also references the DOL's O*NET summary report for "Computer Systems 
Engineers/Architects." The O*NET Summary Report does not establish that a bachelor's degree in a 
spec[fic specialty, or the equivalent, is normally required. It provides general information regarding the 
occupation, but it does not support a conclusion that the proffered position requires a bachelor's degree 
in a specific specialty, or the equivalent. 
O*NET assigns these positions a "Job Zone Four" rating, which states "most of these occupations require 
a four-year bachelor's degree, but some do not." Moreover, the Job Zone Four designation does not 
indicate that any academic credentials for Job Zone Four occupations must be directly related to the duties 
performed. In addition, the specialized vocational preparation (SVP) rating designates this occupation as 
7 < 8. An SVP rating of 7 to less than("<") 8 indicates that the occupation requires "over 2 years up to 
and including 4 years" of training. While the SVP rating indicates the total number of years of vocational 
preparation required for a particular position, it is important to note that it does not describe how those 
years are to be divided among training, experience, and formal education. The SVP rating also does not 
4 The Petitioner classified the proffered position at a Level TV wage. A wage determination sta1is with an entry-level wage 
(Level T) and progresses to a higher wage level (up to Level TV) after considering the experience, education, and skill 
requirements of the Petitioner's job opp01tunity. U.S. Dep't of Labor, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://flcdatacenter.com/ download/NPWH C _Guidance_ Revised_ 11 _ 2009 .pdf 
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Data for Occupations Not Covered in 
Detail, https://www.bls.gov/ooh/about/data-for-occupations-not-covered-in-detail.htm (last visited Apr. 27, 2020). Here, 
the Handbook does not provide specific information for various occupations which might be classified within the occupational 
category. 
6 The Handbook also indicates that this occupation does not require work experience in a related occupation or typical 
on-the-job training. Id. 
3 
specify the particular type of degree, if any, that a position would require. 7 Further, although the summary 
reports provide the educational requirements of "respondents," it does not account for 100% of the 
"respondents." Moreover, the respondents' positions within the occupation are not distinguished by 
career level ( e.g., entry-level, mid-level, senior-level). Furthermore, the graph in the summary report does 
not indicate that the "education level" for the respondents must be in a specific specialty. For all of these 
reasons, O*NET does not establish the proffered position as a specialty occupation. 
As the foregoing demonstrates, the Petitioner has not provided sufficient documentation from a 
probative source to substantiate its assertion regarding the minimum requirement for entry into this 
particular position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
2. Second Criterion 
The second criterion presents two, alternative prongs: "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[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong concentrates upon 
the common industry practice, while the alternative prong narrows its focus to the Petitioner's specific 
position. 
a. First Prong 
We generally consider the following sources of evidence to determine if there is such a common degree 
requirement: whether the Handbook reports that the industry requires a degree; whether the industry's 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry establish that such firms "routinely employ and 
recruit only degreed individuals." 8 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook ( or other independent, authoritative sources) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty, or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. We acknowled e that the Petitioner 
submitted an opinion letter and position evaluation from,.._ _____ ---.-__ _. a professor of 
mathematics and computer science atl !college. ~-----~ 's letter explores some 
of the information typically submitted for this prong of the second criterion, however, for the reasons 
described below, the letter holds little probative value in this matter. 
Initially, we note that the letter contains numerous spelling errors, incomplete sentences, incorrect 
grammar, inconsistent tenses, and awkward phrases and word usage. Though we will examine and 
consider the underlying contents of the letter, these errors undermine the credibility of the opinion. In 
addition to these errors, we question the credibility otj Is opinion when we read his 
7 For additional information, see the O*NET Online Help webpage available at http://www.onetonline.org/ 
help/online/svp. 
8 See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1165 (D.Minn. 1999) (quoting Hird/Blaker COip. v. Sava, 712 F. Supp. 
1095, 1102 (S.D.N.Y. 1989) (considering these "factors" to inform the commonality of a degree requirement)). 
4 
statement that "[f]or all [c]omputer related positions, employers routinely require at least a Bachelor's 
degree in Computer Science, Computer Information Systems, or a related area to enter the profession, 
at any wage level." This generalization ignores the large variance in both the types of positions and 
the type of education needed to function in computer-related positions. We cannot agree, for example, 
that the position or the education level of an individual who installs computer hardware and maintains 
a computer server room would be the same as a computer engineer or a computer science professor, 
though all would be considered to be in computer-related positions. The lack of precision or follow­
up information concerning such a sweeping conclusion undermines the credibility of the author's 
opinion and suggests that.__ _____ ~was asked to confirm a preconceived notion as to the 
required degrees, not objectively assess the proffered position and opine on the minimum bachelor's 
degree required, if any. 9 
In addition to the above, .__ ______ _. references information contained in careerstop.org, 
ieeexplore.ieee.org, and study.com to support his argument that a bachelor's degree in the referenced 
fields is ofte: the entry level education requirement for computer systems architect positions. D I J did not print out the referenced material, but in visiting the referenced websites, we 
conclude that the sites do not support! ~s statements. Careerstop.com states that a 
bachelor's degree is a typical entry education, but it does not state that the degree must be in the areas 
specifically referenced byl I Moreover, Careerstop.com specifically states that "these 
are not requirements for entering this field, but the information can help you understand how qualified 
you might be." The ieeexplore.ieee.org website leads to the site's landing page and not the study 
referenced byl I Even when we examine the underlying study, which can be found 
through a search within the site, the study does not state what educational qualifications are required 
for the position, but rather provides an overview of systems architect work in general. Finally, the 
study.com site suggests what fields of study might prepare an individual for a career as a systems 
architect but does not state that a bachelor's degree in the specifically referenced fields is often the 
entry level education. 6 Is mischaracterization of the information on these sites farther 
undermines his credibility . 
.__ _____ _.I devotes a large portion of his letter to listing the duties of the proffered position. He 
repeats the Petitioner's description of duties, which were already provided to us, and then declares that 
the position is "highly specialized" and "extremely complex," requiring a bachelor's degree in 
computer science, computer information systems, or a related technical field. Furthermore,D 
I ~ lists numerous duties that the Petitioner has not itself articulated as part of the position. 
We question the accuracy of.__ _____ ~' s statements when the Petitioner has not otherwise 
provided these duties in its own descriptions of the position. OverallJ ts evaluation 
includes little to no analysis of how he reached his conclusions. Merely listing duties and declaring 
them to be specialized and complex does not add to our understanding of the substantive nature of the 
pos1t10n. Absent a specific analysis of the duties, as well as a meaningful explanation for the 
complexity or specialized nature of them, we cannot accept I Is conclusions. 
9 Service records show thatl i's letter contains entire verbatim statements which have previously been 
submitted on behalf of other petitioners concerning different occupations and which are similarly unsupported by analysis. 
These similarities lend further support to the suggestion that the author of the opinion was asked to confirm preconceived 
notions. 
5 
Within the evaluation, I I summarizes four job advertisements that he contends are 
similar to the proffered position. To be relevant for consideration, the job vacancy announcements must 
advertise "parallel positions," and the announcements must have been placed by organizations that 1 
conduct business in the Petitioner's industry and (2) are also "similar" to the Petitioner..__ _____ __. 
did not provide the actual printouts of these jobs, but simply the website links to them along with his 
own summary of the information contained within them. As the links are no longer active, we have 
no ability to independently review the information contained in the announcements. Given our 
previously articulated credibility concerns, we decline to rely onl ts summarization 
of the duties and the educational requirements of the advertised positions. Therefore, the Petitioner's 
reliance on them is misplaced. 
That said, even if we accept I ts summary of the announcements, the duties listed for 
the positions are not similar to those of the proffered position. I Is summaries indicate 
the incumbent would use different technologies and be responsible for significantly different product 
lines. Neither the Petitioner, norl I has sufficiently established that the primary duties 
and responsibilities of the advertised positions parallel those of the proffered position. Moreover, no 
information was provided on the employers themselves, which prevents us from determining whether 
these employers are similar to the Petitioner or operating within the same industry. Two of the employers, 
however, are household names, including Northrop Grumman, a multi-billion dollar defense contractor, 
and Amazon Web Services, a global cloud computing platform. Neither of these two employers bear any 
readily discernible similarity to the Petitioner, which stated on the petition that it operates with ten 
employees and $1.1 million in income. Even when overlooking these deficiencies, the educational 
requirements that I I lists vary significantly and include, a bachelor's degree in 
mathematics, statistics, physics, engineering, computer engineering, information technology, 
computer science, or electrical engineering. 10 As such,I Is summary reflects that the 
employers accept a variety of degrees, which does not support the Petitioner's argument that the position 
is a specialty occupation. For all of these reasons, these job vacancy announcements are not relevant.11 
As a final matter, we note thatl I conflates the ability of an individual with a degree in 
computer science or computer information systems to perform the duties of the proffered position with 
a degree requirement in order to perform the duties.I I writes that a student completing 
a bachelor's degree program in the specified fields obtains the knowledge required to perform the 
tasks of the position, as well as that the position is often a typical placement for students completing 
such a degree. However, stating that a person with a bachelor's degree in computer science could 
perform the duties of the proffered position is not the same as stating that such a degree is required to 
perform those duties. Further, stating that individuals with degrees in computer science or computer 
10 Even if all of the job postings indicated that a requirement of a bachelor's degree in a specific specialty is common to 
the industry in parallel positions among similar organizations, whichl ts summary does not indicate is the 
case, the record lacks information on what statistically valid inferences, if any, can be drawn from the job postings with 
regard to the common educational requirements for entry into parallel positions in similar organizations. See generally 
Earl Babb~ ~ ~:~~ r Social Research 186-228 (7th ed. 1995). 
11 Neither [ . nor the Petitioner provided any independent evidence of how representative the job postings 
are of the particular advertising employers' recruiting history for the type of job advertised. Even if we had the 
adve1iisements themselves, they would only signify solicitations for hire and not evidence of the actual hiring practices of 
these employers. 
6 
information systems take a particular career path is not the same as stating a degree is required for 
such a career path. As such, the I I misconstrues the statutory and regulatory 
requirements of a specialty occupation. 
For the foregoing reasons, I Is opinion offers little probative value in this matter. 12 
Aside from this letter, the Petitioner did not submit other evidence for out consideration under this 
prong. As such, the Petitioner has not provided sufficient probative evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions among 
similar organizations. Thus, the Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 2 l 4.2(h)( 4)(iii)(A)(2). 
b. Second Prong 
The second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) is satisfied if the Petitioner shows that 
its particular position is so complex or unique that it can be performed only by an individual with at least 
a bachelor's degree in a specific specialty, or its equivalent. 
Upon review of the totality of the record, the Petitioner has not sufficiently explained or documented 
why the proffered position is so complex or unique that a bachelor's degree in a specific specialty is 
required. When determining whether a position is a specialty occupation, we look at whether the 
position actually requires the theoretical and practical application of a body of highly specialized 
knowledge attained through at least a baccalaureate degree in a specific discipline. Though the 
Petitioner provided multiple lists and descriptions of the duties, the Petitioner failed to sufficiently 
establish how these duties require specialized knowledge. 
Many of the duties are described vague and general terms, not allowing us to understand what the 
Beneficiary will actually do when carrying out the undefined tasks. For instance, we have little 
information on what the Beneficiary will do to: 
• Define and establish standards and architecture for enabling high performance MicroStrategy 
BI solutions; 
• Create schema objects with MicroStrategy; 
• Review system capabilities and limitations; 
• Provide feedback and recommendations to team members on software usability and 
functionality; 
• [W]ork[] with user departments to resolve specific or complex problems; 
• Provide technical support during hardware, software, network installation and/or 
configuration; 
• Participate in Business Continuity Planning; and 
• Manage timelines and produce technical documentation. 
12 We may, in our discretion, use opinion statements submitted by the Petitioner as advisory. Matter of Caron Int'/, Inc., 
19 T&N Dec. 79L 795 (Comm'r 1988). However, where an opinion is not in accord with other information or is in any 
way questionable, we are not required to accept or may give less weight to that evidence. Id. Here, the opinion presented 
does not offer a cogent analysis of the dries and why the duties require a bachelor's degree in a specific specialty. We 
hereby incorporate our discussion of Is opinion into our discussion of the other 8 C.F.R. § 
214.2(h)(4)(iii)(A) criteria. 
7 
Though these duties provide a general overview of work that a computer systems architect might 
perform, the actual day-to-day tasks involved in these duties remains unclear. For example, we do not 
know what managing timelines involves, and though we logically understand why it is important, the 
Petitioner provides no information on how the Beneficiary will carry out the task. We might well 
expect this could include setting a calendar reminder or a goal for a team. These descriptions are too 
nebulous to enable us to understand what the duties will involve. As stated, we cannot ascertain why 
such work requires specialized knowledge. 
In another iteration of duties, the Petitioner assigns a percentage of time that the Beneficiary will spend 
on a series of duties. Contained within the 55% box is a duty to "design, develop, and configure 
computer applications and business systems utilizing full software development lifecycle concepts." 
In the 25% box, we read that the Beneficiary will "design applications by maintaining integrity, 
security, and delivering for business intelligence and reports." Due to the vague and very general 
descriptions of these duties, we cannot ascertain why designing applications appears in two categories, 
whether the duties are different, and if so, how they are different. Furthermore, it is unclear how much 
of the Beneficiary's time involves designing applications. Similarly, the Petitioner indicates that the 
Beneficiary will analyze "domain business analytical intelligence report," but without further 
explanation or description, we cannot determine how this relates to the previously mentioned delivery 
of business intelligent reports. 
The duties also feature significant use of third-party technology, namely MicroStrategy, for which the 
Petitioner has not explained why skills using such a technology could not be gained through 
certifications or trainings. Much of the Beneficiary's work focuses on deploying or customizing this 
technology for the end-client, but the Petitioner makes little effort to explain how use of third-party 
technologies is complex or unique or requires a bachelor's degree in computer science, computer 
engineering, information technology, or a related field. Moreover, it is not apparent how knowledge 
of this third-party technology, or the end-client's computer systems upon which the technology will 
be deployed, would be learned in a bachelor's degree program. 
Accordingly, we conclude that the Petitioner has not shown that the duties of the position are so 
complex or unique that they can be performed only by an individual with at least a bachelor's degree 
in a specific specialty, or its equivalent. The Petitioner did not sufficiently develop relative complexity 
or uniqueness as an aspect of the duties of the position, and it did not identify any tasks that are so 
complex or unique that only a specifically degreed individual could perform them. Thus, it cannot be 
concluded that the Petitioner has satisfied the second alternative prong of 8 C.F.R. 
§ 214.2(h)( 4)(iii)(A)(2). 
3. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it normally 
requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To satisfy this 
criterion, the record must establish that the specific performance requirements of the position 
generated the recruiting and hiring history. 
8 
The record must establish that a petitioner's stated degree requirement is not a matter of preference 
for high-caliber candidates but is necessitated instead by the performance requirements of the 
position. 13 Were U.S. Citizenship and Immigration Services (USCIS) limited solely to reviewing the 
Petitioner's claimed self-imposed requirements, then any individual with a bachelor's degree could be 
brought to the United States to perform any occupation as long as the Petitioner created a token degree 
requirement. 14 Evidence provided in support of this criterion may include, but is not limited to, 
documentation regarding the Petitioner's past recruitment and hiring practices, as well as information 
regarding employees who previously held the position. 
The Petitioner has not submitted information for our consideration under this criterion, therefore it has 
not established that it normally requires at least a bachelor's degree in a specific specialty, or its 
equivalent, for the proffered position. Thus, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(3). 
4. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature of 
the specific duties is so specialized and complex that the knowledge required to perform them is usually 
associated with the attainment of a baccalaureate or higher degree in a specific specialty, or its equivalent. 
Although some tasks may connote a requirement of familiarity with general computer science principles, 
including system knowledge and third-party technologies, the record is insufficient to establish that the 
duties require anything more than a few basic courses and a technical background. While a few such 
courses may be beneficial in performing certain duties of the position, the Petitioner, who bears the 
burden of proof, has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. 
For the same reasons we discussed under the second prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2), we 
conclude that the Petitioner has not established that its proffered position is one with duties sufficiently 
specialized and complex to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). We incorporate our earlier 
discussion and analysis on this matter. 
C. Speculative Work 
We conclude next that the Petitioner has not established the existence of definitive, non-speculative 15 
employment for the Beneficiary. This is particularly important in a case such as this, where the very 
existence of the proffered position is dependent entirely upon the willingness of the end-client to 
provide it. The contractual path of succession between the four actors at play in this matter runs as 
follows: 
Petitioner ➔ .... I ___ _.I (first vendor) 1 .... ___ ~l(second vendor) ➔□(end-client) 
13 See Defensor, 201 F.3d at 387-88. 
14 Id. 
15 Speculative employment is not permitted in the H-lB program. See, e.g., 63 Fed. Reg. 30419 (proposed June 4, 1998). 
9 
The Petitioner filed this petition in March 2018 and claimed that the Beneficiary would work at the 
end-client's location from March 2018 to September 2019. To support this claim, the Petitioner 
submitted a letter from the first vendor, the second vendor, and the end client. The letters appear to 
follow a template whereby the authors state the duties, the education requirements, and that the 
Petitioner maintains control over the Beneficiary as an employee. However, none of the letters 
evidence any contractual obligations. Therefore, we cannot know what legal obligations, if any, exist 
between the parties. Though the Director requested further information concerning the contractual 
obligations between the parties and the specific project(s) the Beneficiary will be assigned to, the 
Petitioner has failed to provide them. 
The absence of such documentation weighs heavily here because the existence of the proffered 
position appears dependent entirely upon the willingness of the end-client to provide it. 16 Absent 
copies of purchase orders, statements of work, or other contractual agreements, the record lacks 
evidence of any legal obligation on the part of the end-client to provide the position described by the 
Petitioner in this petition. Moreover, we do not have any information on how the first vendor and 
second vendor contractually interact with the Petitioner. We note that the Petitioner's concerns over 
revealing confidential information or trade secrets, however, these concerns do not relieve the 
Petitioner of its burden to provide evidence of the availability of non-speculative specialty occupation 
work for the Beneficiary to perform. 
D. Summary of Specialty Occupation Issues 
The foregoing analysis demonstrates that the Petitioner has not established that the proffered position 
satisfies any of the requirements at 8 C.F.R. § 214.2(h)(4)(iii)(A), or that it qualifies as a specialty 
occupation pursuant to section 214(i)(l) of the Act. In addition to this, we conclude that the Petitioner 
has not established the availability of non-speculative specialty occupation work for the Beneficiary 
to perform. 
II. EMPLOYER - EMPLOYEE 
A. Legal Framework 
A petitioner seeking to file for an H-lB beneficiary must meet the definition of a "United States 
employer." 17 According to the regulation at 8 C.F.R. § 214.2(h)(4)(ii), the term "United States 
employer" means a person, firm, corporation, contractor, organization, or other association in the 
United States which: 
(I) Engages a person to work within the United States; 
16 Cf Galaxy Software Solutions. Inc. v. USCIS, No. 18-12617, 2019 WL 2296824, at *7 (E.D. Mich. May 30, 2019) 
(describing the petitioner's "fail[ure] to provide all of the contracts governing the relationships between the corporate 
entities in the chain" as a "material gap"). 
17 8 C.F.R. § 214.2(h)(2)(i)(A). See section 10l(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act) (referring 
to the "intending employer"). 
10 
(2) Has 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; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added.) 
For purposes of the H-lB visa classification, the terms "employer-employee relationship" and 
"employee" are undefined. The United States Supreme Court determined that where federal law does 
not helpfully 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." 18 Thus, to interpret these terms, USCIS will apply common law agency principles which 
focus on the touchstone of control. 
In determining whether a petitioner controls the manner and means of a beneficiary's work under the 
common law test, 19 USCIS will consider such factors as: the skill required; the source of the 
instrumentalities and tools; the location of the work; the duration of the relationship between the 
parties; the petitioner's right to assign additional projects to the hired party; the extent of the 
beneficiary's discretion over when and how long to work; the method of payment; the beneficiary's 
role in hiring and paying assistants; whether the work is part of the petitioner's regular business; the 
provision of employee benefits; and the tax treatment of the beneficiary. 20 We will assess and weigh 
all of the factors of the relationship, with no one factor being decisive. 
B. Analysis 
The Petitioner has maintained throughout these proceedings that it will employ the Beneficiary and 
has the ability to hire, fire, remunerate, supervise, review, and otherwise control his work. The 
Petitioner further claims it will perform numerous administrative functions pertaining to the 
Beneficiary's employment. Social security, worker's compensation, and unemployment insurance 
contributions, as well as federal and state income tax withholdings, and the provision of other 
employment benefits, are relevant factors in determining who will control a beneficiary. While such 
factors might appear to satisfy a cursory review that a petitioning entity could be an individual's 
employer, these elements are not necessarily sufficient to provide a full appraisal of the relationship 
between the parties. We must also assess and weigh other factors to determine who will be a 
beneficiary's employer. For example, we consider who will oversee and direct a beneficiary's work, 
who will provide the instrumentalities and tools, where the work will be located, and who has the right 
or ability to affect the projects to which a beneficiary will be assigned, among other factors. A 
18 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)); Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 444-45 (2003) ( quoting Darden). 
19 When examining the factors relevant to determining control, we must assess and weigh each actual factor itself as it 
exists or will exist and not the claimed employer's right to influence or change that factor, unless specifically provided for 
by the common-law test. See Darden, 503 U.S. at 323-24. 
20 Darden, 503 U.S. at 324; Clackamas, U.S. 538 U.S. at 449. See also Defensor, 201 F.3d 388. (even though a medical 
staffing agency is the petitioner, the hospitals receiving the beneficiaries' services are the "true employers" because they 
ultimately hire, pay, fire, supervise, or otherwise control the work of the H-IB beneficiaries). 
11 
petitioner must sufficiently address all of the relevant factors to enable us to evaluate whether the 
requisite employer-employee relationship will exist between a petitioner and a beneficiary. 
Though we acknowledge the Petitioner's claims of control, we must weigh them against the evidence 
contained in the record. The vendors and end-client claim that the Beneficiary would be employed by 
the Petitioner, and while the Petitioner does appear to retain the right to hire, fire, supervise, or 
otherwise control the Beneficiary's work, the Petitioner has not sufficiently explained the actual 
manner in which it provides such instructions and oversight. This is of particular concern when the 
Petitioner is located in California and the Beneficiary will be located at the end-client site in Michigan. 
The record contains some information regarding the type of computer system and business intelligence 
work that the Beneficiary would customize for the end-client, which appears to be on the end-client's 
systems. However, there is little information regarding any ongoing role for the Petitioner on that 
project. The Petitioner stated that it "receives" and "review[ s] the "work/tasks performed," which 
suggests that the Petitioner is not primarily generating or delegating work to the Beneficiary. 
Furthermore, the Petitioner states that it has the "ability to assign additional work to the Beneficiary, 
if need arises" ( emphasis added) which again suggests that the Petitioner is not the primary entity to 
assign work to the Beneficiary. 
The Petitioner states that it will monitor the performance of its employees at end-client sites through 
weekly work status reports submitted along with timesheets and regular communication with the 
Petitioner's project manager. It farther states that it maintains a weekly/daily reporting pattern via 
email and phone. However, a "reporting pattern" suggests that the Beneficiary will report back to the 
Petitioner on what he did after the fact, rather than receive the work and supervision from the Petitioner 
at the outset. The Petitioner provided sample timesheet and work status report printouts of the 
Beneficiary's work, which appear to have been prepared by Beneficiary. These documents only 
marginally help to establish an employer-employee relationship in that they confirm the after-action 
nature of the reporting structure, rather than evidencing actual delegation of work or supervision on 
the part of the Petitioner during completion of the work. The record contains little other evidence by 
which we might understand how the Petitioner maintains an employer-employee relationship with the 
Beneficiary. 
From the documentation, the Petitioner's role appears limited to the provision of the Beneficiary's 
services with little room for actual direction of his activities. Though the Petitioner states that it 
controls the Beneficiary, the passive nature of the "regular communication" and the "reporting 
pattern," combined with the physical distance between the Petitioner and the Beneficiary, raises 
questions as to what entity actually controls the Beneficiary. As the end-client controls the 
Beneficiary's access to its systems, without which the Beneficiary's work could not be done, we 
farther question whether the Petitioner maintains control of the Beneficiary as claimed. Having the 
foll set of contracts executed between the actors might have shed light on this question, but they were 
not submitted. In this regard, we observe that the Petitioner has submitted insufficient information to 
conclude that the Petitioner assigns the Beneficiary day-to-day work. Therefore, we cannot conclude 
that the Petitioner would operate as the Beneficiary's employer in the common law sense. 
The evidence of record 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). Merely claiming in its letters that the Beneficiary 
12 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence to support the claim, does not establish eligibility in this matter. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the Beneficiary as an H-lB temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). 
III. BENEFICIARY QUALIFICATIONS 
As the Petitioner did not demonstrate that the proffered position is a specialty occupation or that it will 
maintain an employer-employee relationship with the Beneficiary, we need not fully address other 
issues evident in the record. That said, we wish to identify these additional issues to inform the 
Petitioner that these matters should be addressed in any future proceedings. 
Though the Director's decision did not address the Beneficiary's qualifications, we conclude that the 
record does not sufficiently demonstrate that the Beneficiary's combined education and work 
experience meets the Petitioner's stated requirements. First, the Education Evaluators International 
foreign degree evaluation contains insufficient evidence to corroborate how it reached its conclusions. 
The evaluation states that the Beneficiary underwent three years of study (1994-1997), resulting in a 
degree that the evaluator states is equivalent to a bachelor's degree in mathematics. After this, the 
Beneficiary underwent another three years of study ( 1999-2001) and was awarded a degree which the 
evaluator states is the equivalent of a master's degree in computer information systems. 
Initially, we question how three years of study in a foreign bachelor's degree program could be 
equivalent to a U.S. bachelor's degree, which is typically four years of full-time study. Furthermore, 
we question the three-year period of study attributed to the master's degree program in that a typical 
academic calendar suggests that the period of 1999-2001 includes two years of academic study, not 
three. The record contains a "statement of marks" dated April 2001 and another for April 1997, along 
with lists of course codes corresponding to the courses listed in those statements. The statement of 
marks for April 2001 includes courses from 1998-2001, which suggests an error in the evaluation. 
Though we have copies of the foreign diplomas for each of these degrees, the remainder of the 
documentation in the record does not resolve our concern. The Petitioner submitted a senior high 
school (higher secondary school) report card dated March 1994 and a junior high school ( secondary 
school) leaving certificate dated April 1992. As the high school documentation has no bearing on the 
degree equivalency for a bachelor's or a master's degree, we will not further address it. 
Without further explanation from the evaluator or additional documentation, we conclude the 
evaluator's equivalency assessment lacks a sufficient documentary foundation. The evaluator has not 
offered analysis or explanation for a three-year bachelor's degree in India being the equivalent of a 
U.S. bachelor's degree, which as previously stated, is typically four years of full-time study. This, 
combined with the apparent date error in the evaluation, undermines its credibility as a whole. 21 We 
21 We will not repeat our discussion of our credibility concerns as it pertains to~----~s opinion letter, however, 
we acknowledge that his letter contains information concerning his ability to grant U.S. college level credit for foreign 
education. Though~----~ states that he is qualified to transfer the credit, has evaluated foreign credentials.-,a:j 
well as is "an authority" in this regard, his letter does not state that he has the authority to grant such credit. BecauseLJ 
13 
may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. 22 
However, where an opinion is not in accord with other information or is in any way questionable, we 
may discount or give less weight to that evaluation. 23 
In addition to the minimum educational qualifications, the Petitioner also articulated that it requires a 
"minimum of three years of experience in computer architecture, data, analysis, design, development, 
testing, and implementation of programs," along with various technical skills and proficiencies in 
math, reading, and writing. We note the Beneficiary's resume within the record of proceedings, 
however, aside from this document, we have no other information with which to make a determination 
as to whether the Beneficiary meets the Petitioner's other requirements. The Petitioner has not 
submitted work samples, certifications, a list of trainings, or other documentary evidence beyond the 
Beneficiary's resume to substantiate a finding that the Beneficiary possesses the requisite experience. 
IV. CONCLUSION 
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. 
.,_I ___ __,._.I does not appear to have the requisite authority to equate a beneficiary's credentials, nor is it apparent that 
~I ---~!College has a program for granting such creditl Is letter is not probative for these additional 
reasons. 
22 Matter of Sea, Inc., 19 I&N Dec. 817,820 (Comm'r 1988). 
23 Id. 
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