dismissed H-1B Case: Computer Science

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 6, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 
I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software and computer consulting company, 1 seeks to temporarily employ the 
Beneficiary as a programmer analyst under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) § 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, California Service Center, denied the petition. Subsequently, the Petitioner filed a 
combined motion to reopen and reconsider. The Director considered the motion, but affirmed its 
decision to deny the petition. The Director concluded that the evidence of record does not establish: 
(1) that the Petitioner would engage the Beneficiary in an employer-employee relationship; and (2) 
that the proffered position is a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred in her findings.2 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will first address whether the evidence of record establishes that the Petitioner will be a "United 
States employer" having "an employer-employee relationship with respect to employees under this 
1 The Petitioner is registered in New Jersey under the name claims to 
be conducting business as and filed the petition under this name. However, according to the website 
of the New Jersey Division of Revenue, corporate status has been revoked. 
See Jast visited Apr. 5, 20 16). 
2 On appeal, the Petitioner raises issues relating to an H-18 petition it filed on behalf of the 
Beneficiary on August 3, 20 II. The Director revoked the approval of this petition on March 2, 2015, and it is not the 
subject of the instant appeal. We therefore will not address any of the issues raised by the Petitioner relating to 
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part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.P.R.§ 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services ... in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the [Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.P.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(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); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F .R. pt. 214 ). 
The record is not persuasive in establishing that the Petitioner will have an employer-employee 
relationship with the beneficiary. 
Although "United States employer" is defined in the regulations at 8 C.P.R. § 214.2(h)(4)(ii), it is noted 
that the terms "employee" and "employer-employee relationship" are not defined for purposes of the 
H-1B visa classification. Section 101(a)(15)(H)(i)(b) of the Act indicates that a foreign national coming 
to the United States to perform services in a specialty occupation will have an "intending employer" 
who will file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) 
of the Act, 8 U.S.C. § 1182(n)(l) (2012). The intending employer is described as offering full-time or 
part-time "employment" to the H-1B "employee." Subsections 212(n)(l)(A)(i) and 212(n)(2)(C)(vii) of 
the Act, 8 U.S.C. § 1182(n)(l)(A)(i), (2)(C)(vii) (2012). Further, the regulations indicate that "United 
States employers" must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classifY 
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foreign nationals as H-lB temporary "employees." 8 C.F.R. §§ 214.2(h)(l), (2)(i)(A). Finally, the 
definition of "United States employer" indicates in its second prong that the petitioner must have an 
"employer-employee relationship" with the "employees under this part," i.e., the H-1B beneficiary, and 
that this relationship be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise 
control the work of any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States 
employer"). 
Neither the legacy Immigration and Naturalization Service ("INS") nor U.S. Citizenship and 
Immigration Services ("USCIS") defined the terms "employee" or "employer-employee relationship" 
by regulation for purposes of the H -1 B visa classification, even though the regulation describes H -1 B 
beneficiaries as being "employees" who must have an "employer-employee relationship" with a 
"United States employer." I d. Therefore, for purposes of the H-1 B visa classification, these terms are 
undefined. 
The United States Supreme Court has 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 Mutual ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community 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." 
ld.; 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)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-lB visa classification, the regulations define the term 
3 
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"United States employer" to be even more restrictive than the common law agency definition.3 
Specifically, the regulatory definition of "United States employer" requires H-lB employers to have a 
tax identification number, to engage a person to work within the United States, and to have an 
"employer-employee relationship" with the H-lB "employee." 8 C.F.R. § 214.2(h)(4)(ii). 
Accordingly, the term "United States employer" not only requires H-lB employers and employees to 
have an "employer-employee relationship" as understood by common-law agency doctrine, it imposes 
additional requirements of having a tax identification number and to employ persons in the United 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the definition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 U.S. at 318-319.4 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) of the Act, and 8 C.F.R. § 214.2(h).5 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-lB nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 
8 C.F.R. § 214.2(h)(4)(ii) (defining a "United States employer" as one who "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 .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
3 While the Darden court considered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 ("ERISA"), 29 U.S.C. § 1002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
4 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, (1945)). 
5 That said, there are instances in the Act where Congress may have intended a broader application of the term 
"employer" than what is encompassed in the conventional master-servant relationship. See, e.g., section 214(c)(2)(F) of 
the Act, 8 U.S.C. § 1184(c)(2)(F) (referring to "unaffiliated employers" supervising and controlling L-1 8 intracompany 
transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
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(b)(6)
Matter of S-S-
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-1B 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS 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 
323-324. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, not who has 
the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive."' I d. at 451 (quoting Darden, 503 U.S. at 324 ). 
B. Analysis 
Applying the Darden and Clackamas tests to this matter, we find that the evidence of record does 
not establish that the Petitioner will be a "United States employer" having an "employer-employee 
relationship" with the Beneficiary as an H-1B temporary "employee." Specifically, we find that the 
record of proceeding does not contain sufficient, consistent, and credible documentation confirming 
and describing the circumstances of the Beneficiary's claimed assignment to the Petitioner's end­
client. Therefore, the key element in this matter, which is who exercises control over the 
Beneficiary, has not been substantiated. 
On the Form I-129, the Petitioner provided a single work location where the Beneficiary would 
provide his services: Minnesota. This address corresponds to the 
work location of the claimed end-client, at whose 
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location the Petitioner claims the Beneficiary would work pursuant to an agreement executed 
between the Petitioner and on July 18, 2014. The 
Petitioner submitted an LCA certified for this single Minnesota location. The Petitioner also 
submitted a letter dated August 13, 2014, signed by Talent Acquisition Manager at 
in which listed the duties of the proffered position, and stated that the 
Beneficiary "has been assigned to work as consultant at (their] location 
NM (Emphasis omitted.) Similarly, in a letter dated June 15, 2015, 
, the director of talent acquisition at . stated that the Beneficiary has been 
working at the company ' s Minnesota location since July 28, 2014. 
However, the evidentiary weight of these documents is undermined by the Petitioner's statement on 
the Form I-129 that the Beneficiary would not work off-site.6 Moreover, a purchase order dated July 
18, 2014, indicates that the Beneficiary would provide services not only to as 
described above, but also to another company identified as The evidence of 
record makes clear neither where this additional worksite would be located nor the period of time 
during which the Beneficiary would work there . 7 The Petitioner did not explain any of these 
deficiencies, and they undermine the probative of the Petitioner 's assertions, as well as the 
documents submitted in their support, that the Beneficiary would work solely for at 
its Minnesota address. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence." Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. !d. at 591-92. "Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition." !d. at 591. 
Furthermore, as noted, the letters from the end-client indicate that the Beneficiary has been 
performing his services for the company, uninterrupted, since July 28, 2014. However, as noted by 
the Director, the approval of the H -1 B petition upon which the Beneficiary's work there was based 
was revoked on March 2, 2015, more than three months before the final letter was written. The 
evidentiary value of these letters, therefore, are unclear, as it appears that either: (1) the Beneficiary 
was not working as claimed in the letters; or (2) the Beneficiary was working as claimed, but without 
H -1 B authorization. 
Moreover , we note that the record does not contain copies of any agreements executed between 
or between the Petitioner and The Petitioner submits a 
letter, dated September 18, 2014, from . a manager at , stating that a signed 
agreement between and its client cannot be provided due to confidentiality and non-
disclosure information. references a letter provided by to substantiate the 
6 On appeal, Counsel states that this was an error. However , the record does not contain a statement from the Petitioner 
stating as such. Without documentary evidence to support the claim , the assertions of counsel will not satisfy the 
Petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena , 
19 l&N Dec . 533, 534 n.2 (BIA 1988) (citing Matter qf Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). 
7 The lack of information regarding location also calls into question the validity of the labor 
condition application submitted in support of this petition. 
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Beneficiary's work at the end-client, However, 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 USCIS. 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, 1987 WL 181359 (June 23, 1987). Therefore, we find the 
explanation provided by regarding its inability to provide the requisite agreement it has with 
insufficient to cure this evidentiary deficiency. 
For all these reasons, we find that the Petitioner has not substantiated the existence of any work to be 
performed by the Beneficiary at the site of the claimed end-client. Consequently, 
we are unable to ascertain whether the Petitioner would in fact engage the Beneficiary in an 
employer-employee relationship while working there. 8 
However, even if we were to ignore this foundational deficiency we would still find the evidence of 
record insufficient to establish the requisite employer-employee relationship between the Petitioner 
and the Beneficiary. This is because the Petitioner, which is located in New Jersey, has not 
explained and documented in detail how it would supervise and otherwise control the Beneficiary's 
day-to-day activities while he works for the claimed end-client in Minnesota. 
We acknowledge the Petitioner's repeated claims that it will maintain control over the Beneficiary. 
However, the evidence of record does not establish that the Petitioner would supervise and otherwise 
exercise control over the Beneficiary's employment. For example, while the Petitioner claims to be 
a 15-employee company, it did not submit an organizational chart describing the positions these 
employees hold, and whether any of them would also be working for the claimed end-client in 
Minnesota and could therefore supervise the Beneficiary. The evidence of record provides no 
8 The agency made clear long ago that speculative employment is not permitted in the H-1 8 program. For example, a 
1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 8 classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 8 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 8 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 8 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). 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. § 214.2(h)(2)(i)(E). 
7 
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insight into how, from a remote location, the Petitioner would control the Beneficiary's work on a 
daily basis. While the Petitioner states repeatedly in its letters that it would remain the Beneficiary's 
employer, it does not explain how it would supervise and otherwise control the Beneficiary's work. 
Nor did the Petitioner explain how, as the Beneficiary's employer, it would evaluate the 
Beneficiary's performance from New Jersey. Nor did the Petitioner identify by name or title the 
individual who would provide such supervision. Nor did the Petitioner explain how it would train 
the Beneficiary, as it claimed in would do in its letter dated February 18,2015. 
These deficiencies are also true of the itinerary, the service agreements, 9 the letters from and 
the purchase order, and the employment agreement. While the service agreement 
between the Petitioner and does address the issue of the employment relationship between 
the Petitioner and the Beneficiary, it does so only by noting that the Petitioner will be responsible for 
taxes and other compensations required by law.10 Beyond that, it provides no insight into the 
specifics of the claimed control that the Petitioner would have over the Beneficiary. In other words, 
the generalized assertions regarding control contained in the record of proceedings lack any degree 
of specificity, and they do not specifically discuss, in probative detail, the degree of supervision, 
direction, or control that the Beneficiary would receive from a long-distance employer. They are not 
sufficient to establish that the Petitioner would supervise or otherwise control the work of the 
Beneficiary. "[G]oing on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings." Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
For all of these reasons, the evidence of record does not demonstrate the reqmstte employer­
employee relationship between the Petitioner and the Beneficiary . 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 a foreign national 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 foreign 
national Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. Without full disclosure of all of the 
9 In addition to the service agreement relevant to the Beneficiary's current assignment, the record of proceeding also 
contains a copy of an agreement executed between the Petitioner and ; an agreement and a purchase 
order executed between the Petitioner and an agreement executed between the Petitioner and 
an agreement executed between the Petitioner and .; and an agreement between the 
Petitioner and However, these documents do not cure 
these deficiencies. 
10 The Petitioner's claims that it would pay the Beneficiary's salary are noted, and the method of payment is a factor to 
be considered. However , in some instances, a petitioner 's role is limited to invoicing and proper payment for the hours 
worked by a beneficiary. In such cases, with a petitioner 's role limited to essentially the functions of a payroll 
administrator, a beneficiary is even paid, in the end, by the end-client See Defensor v. Meissner, 201 F.3d at 388 . It is 
necessary to weigh and compare on all of the circumstances in the relationship between the parties in analyzing the facts 
of each individual case . 
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relevant factors, we are unable to find that the requisite employer-employee relationship will exist 
between the Petitioner and the Beneficiary. 
The evidence of record, therefore, 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 
Petitioner exercises complete control over the Beneficiary, without evidence supporting the claim, 
does not establish eligibility in this matter. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSojjici, at 165. 
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 -1 B temporary 
"employee." 8 C.F.R. § 214.2(h)(4)(ii). Thus, we agree with the Director's decision that the 
Petitioner has not demonstrated that it will have an employer-employee relationship with the 
Beneficiary. 
II. SPECIALTY OCCUPATION 
The second issue before us is whether the evidence of record demonstrates by a preponderance of the 
evidence that the Petitioner will employ the Beneficiary in a specialty occupation position. 
A. Legal Framework 
For an H -1 B petition to be granted, the Petitioner must provide sufficient evidence to establish that it 
will employ the Beneficiary in a specialty occupation position. To meet its burden of proof in this 
regard, the Petitioner must establish that the employment it is offering to the Beneficiary meets the 
applicable statutory and regulatory requirements. 
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) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ ( 1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
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attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position 
must meet one of the following criteria: 
(1) 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 a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)( 4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
of language which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-F-, 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoid this 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(l) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets 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 proffered position. See 
Royal Siam Corp. v. Cherto.ff, 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"). Applying this standard, USCIS regularly approves H -1 B petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
10 
(b)(6)
Matter of S-S-
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely on a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. users must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, 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. See Defensor v. Meissner, 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 ofthe requirements imposed by the entities using the beneficiary's services. !d. 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. The Proffered Position 
In its support letter, the Petitioner stated that the duties of the programmer analyst position are as 
follow (verbatim): 
The position will involve the qualified candidate to (1) design, develop, and 
implement client/server and web-based applications software using current 
technology; (2) analyze and review system resources; (3) conduct business analysis; 
( 4) assist in performing various types of tests including performance, stress volume 
and compatibility tests, (5) code assigned modules, 96) participate in team meetings, 
and (7) provide detailed progress reports to management. 
The Petitioner also submitted a letter dated September 22, 2014, m which it stated that the 
Beneficiary has been assigned to and his primary duties include: 
• Troubleshooting of configuration which includes custom configuration, 
Custom Work:flows and Custom Business Services. 
• Creation of new and modification of existing - Screens, Views, Applets, Pick 
Lists, Business objects, Business Component, Links and Joins using Tools 
and 
1 1 
(b)(6)
Matter of S-S-
• Assist in Installation of products. 
• Functional and Technical Design Documentation. 
• Provide expert inputs in Design discussions. 
• Preparation of Training Materials. 
• Train developers on products[.] 
However, the end-client, provided the following duties for the proffered position: 11 
• [I]nteract with management and business analysts to determine system 
requirements. 
• Develop functional and technical computer software designs[.] 
• Develop, test and document computer software application designs[.] 
• Migrate legacy computer software applications by using new technologies. 
• Assist in troubleshooting production issues. 
• Advise concerning maintenance of computer software system[.] 
The end-client also stated that the "job requires the candidate to have at least a Bachelor's degree in 
Computer Science, Engineering, MIS, or equivalent in related field." 
C. Analysis 
The Petitioner asserts that the Beneficiary will work at the end-client's 
location in Minnesota. As 
recognized in Defensor v. Meissner, 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. See Defensor v. 
Meissner, 201 F.3d at 387-388. 
Here, however, the record of proceedings, as we discussed earlier, does not establish an end-client as 
there is no binding contract between the parties. Although we acknowledge the letters from 
listing the duties of the Beneficiary, the evidence of record does not support the assertions 
that the Beneficiary will be working at the Minnesota location for the duration of 
the employment period requested because: (1) there is no corresponding agreement between 
and the Petitioner or between (2) the letters from 
are of limited probative value as a result of the revocation of the approval of the prior 
petition; 12 and (3) the uncertainty over where the Beneficiary would actually work. 
Furthermore, considering the totality of all of the Petitioner's duty descriptions, as well as the duties 
provided by we find that the evidence of record does not establish the depth, 
complexity, or level of specialization, or substantive aspects of the matters upon which the Petitioner 
claims that the Beneficiary will engage. Rather, the duties of the proffered position, and the position 
11 
The duties provided by the claimed end-client in its letters are essentially the same. 
12 
Again, the evidentiary value of this letter, therefore, is unclear, as it appears that either: (1) the Beneficiary was not 
working as claimed in the letter; or (2) the Beneficiary was working without H-1 8 authorization. 
12 
(b)(6)
Matter of S-S-
itself, are described in relatively generalized and abstract terms that do not relate substantial details 
about either the position or its constituent duties. For example, in its support letter, the Petitioner states 
that the Beneficiary will "analyze and review system resources" and that he will "conduct business 
analysis." However, these statements provide no insight into the Beneficiary's actual tasks. The 
abstract nature of the proposed duties is further illustrated by the Petitioner's statement that the 
Beneficiary will "assist in performing various types of tests." The Petitioner does not explain the 
Beneficiary's actual tasks in "assisting," nor does it specify the types of tests the Beneficiary will 
perform. 
Similarly, the end-client also describes the duties in generalized and abstract terms. For example 
the claimed end-client, states that the Beneficiary will "interact with management 
and business analysts." The end-client, however, does not provide any details regarding what 
"interact[ing] with" involves, or the frequency of such interaction with management and business 
analysts. Again, the generalized nature of the duties is exemplified by the end-client's statements 
that the Beneficiary will "develop" computer software designs, "assist in troubleshooting," and 
"advise concerning maintenance of computer software system." These generalized statements fail to 
provide any insight into the nature of proffered position and the actual tasks the Beneficiary would 
perform on a day-to-day basis. Notably, the Petitioner does not explain how the performance of the 
proffered duties, as described in the record, would require the attainment of a bachelor's or higher 
degree in a specific specialty, or its equivalent. 
In addition, neither the Petitioner nor the claimed end-client has provided any information with 
regard to the order of importance and/or frequency of occurrence with which the Beneficiary will 
perform the functions and tasks listed. Thus, the Petitioner and the claimed end-client did not 
specify which tasks were major functions of the proffered position, and they did not establish the 
frequency with which each of the duties would be performed (e.g., regularly, periodically or at 
irregular intervals). As a result, the Petitioner did not establish the primary and essential functions of 
the proffered position. 
In the instant case, neither the Petitioner nor the claimed end-client has described the proffered 
position with sufficient detail to determine that the minimum requirements are a bachelor's degree in 
a specialized field of study. It is incumbent on the Petitioner to provide sufficient evidence to 
establish that the particular position that it proffers would necessitate services at a level requiring 
both the theoretical and practical application of a body of highly specialized knowledge and the 
attainment of at least a bachelor's degree in a specific specialty, or its equivalent. When "any person 
makes an application for a visa or any other document required for entry, or makes an application for 
admission, [ ... ] the burden of proof shall be upon such person to establish that he is eligible" for 
such benefit. Section 291 of the Act; see also Matter ofTreasure Craft of California, 14 I&N Dec. 
190 (Reg'l Comm'r 1972). 
Without a meaningful job description, the record lacks evidence sufficiently concrete and 
informative to demonstrate that the proffered position requires a specialty occupation's level of 
knowledge in a specific specialty. The tasks as described do not communicate (1) the actual work 
that the Beneficiary would perform, (2) the complexity, uniqueness and/or specialization of the 
13 
Matter of S-S-
tasks, and/or (3) the correlation between that work and a need for a particular level education of 
highly specialized knowledge in a specific specialty. 
The record therefore does not establish the substantive nature of the work to be performed by the 
Beneficiary, which therefore 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. 
For the reasons related in the preceding discussion, the Petitioner has not established that it has 
satisfied any of the criteria at 8 C.F.R. § 214.2(h)( 4)(iii)(A) and, therefore, it cannot be found that 
the proffered position qualifies as a specialty occupation. 
III. PRIOR H-1B APPROVALS 
The Petitioner noted that USCIS approved other petitions that had been previously filed on behalf of 
the Beneficiary for a position the Petitioner claims to be the same as the proffered position. 
However, we are not required to approve petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter of Church Scientology 
Int '!, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be "absurd to suggest that [USCIS] or any 
agency must treat acknowledged errors as binding precedent." Sussex Eng'g, Ltd. v. Montgomery, 
825 F .2d 1084, 1090 (6th Cir. 1987). 
A prior approval does not compel the approval of a subsequent petition or relieve the Petitioner of its 
burden to provide sufficient documentation to establish current eligibility for the benefit 
sought. Temporary Alien Workers Seeking Classification Under the Immigration and Nationality 
Act, 55 Fed. Reg. 2,606, 2,612 (Jan. 26, 1990) (to be codified at 8 C.P.R. pt. 214). A prior approval 
also does not preclude USCIS from denying an extension of an original visa petition based on a 
reassessment of eligibility for the benefit sought. See Tex. A&M Univ. v. Upchurch, 99 F. App'x 
556 (5th Cir. 2004). Furthermore, our authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had 
approved the nonimmigrant petitions on behalf of a beneficiary, we would not be bound to follow 
the contradictory decision of a service center. See La. Philharmonic Orchestra v. INS, 44 F. Supp. 
2d 800, 803 (E.D. La. 1999). 
14 
Matter of S-S-
IV. CONCLUSION AND ORDER 
As discussed, we agree with the Director that the evidence of record does not establish: (1) that the 
Petitioner would engage the Beneficiary in an employer-employee relationship; and (2) that the 
proffered position is a specialty occupation. The appeal will therefore be dismissed. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966) ). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-, ID# 16091 (AAO Apr. 6, 2016) 
15