dismissed H-1B Case: Computer Science

(b)(6)
DATE: MAY 1 8 2015 
IN RE: Petitioner: 
Beneficiary: 
FILE#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
NO REPRESENTATIVE OF RECORD 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requireme nts for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requireme nts. Please do not mail any motions directly to the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. The petition will be denied. 
I. PROCEDU RAL AND FACTUAL BACKG ROUND 
On the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as a 
4-employee "Computer Systems and Software Analysis and Consulting Services" firm established in 
In order to employ the beneficiary in what it designates as a "Computer Systems Analyst" 
position, the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation 
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director found the initial evidence insufficient to establish eligibility for the benefit sought, and 
issued a Request for Evidence (RFE). Thereafter, the petitioner responded to the RFE. The Director 
reviewed the information and determined that the petitioner failed to establish eligibility for the 
benefit sought. The Director denied the petition, finding that the petitioner failed to establish that it 
has standing to file the instant visa petition as the beneficiary's prospective United States employer as 
that term is defined at 8 C. F.R. § 214.2(h)(4)(ii) and failed to establish that the proffered position 
qualifies for classification as a specialty occupation position. On appeal, the petitioner asserts that 
the Director's bases for denial were erroneous and contends that the petitioner satisfied all 
evidentiary requirements. 
We base our decision upon our review of the entire record of proceeding, which includes: 
(1) the petitioner's Form I-129 and the supporting documentation; (2) the service center's RFE; (3) 
the petitioner's response to the RFE; ( 4) the Director's denial letter; and (5) the Notice of Appeal or 
Motion (Form I-290B) and the petitioner's submissions on appeal. We reviewed the record in its 
entirety before issuing our decision. 1 
As will be discussed below, we have determined that the Director did not err in her decision to deny 
the petition on the employer-employee and specialty occupation issues. Accordingly, the Director's 
decision will not be disturbed. The appeal will be dismissed, and the petition will be denied. 
II. PROFFERED POSITION 
The Labor Condition Application (LCA) submitted to support the visa petitiOn states that the 
proffered position is a Computer Systems Analyst position, and that it corresponds to Standard 
Occupational Classification (SOC) code and title 15-1121, Computer Systems Analysts, from the 
Occupational Information Network (O*NET). The LCA further states that the proffered position is a 
wage Level I, entry-level, position. 
1 We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
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In a letter dated April 1, 2014, signing as the petitioner's CEO, stated: 
"[The petitioner provides] the full spectrum of software and web development services on our 
premises as well as in dedicated offshore centers and at customer sites." That letter also contains the 
following description of the duties of the proffered position: 
As a Computer Systems Analyst with [the petitioner], [the beneficiary] will analyze, 
design and implement a complex set of Web-based applications for booking travel 
reservations. He will be responsible for extracting and defining user requirements. 
Furthermore, [the beneficiary] will identify where modifications to existing processes 
are required. He will also design new processes as necessary. In each situation, [the 
beneficiary] will perform comprehensive testing of any improved or newly developed 
applications prior to their implementation. His technical environment will include 
ASP.NET, C#, Java Script, HTML, and MS SQL Server/Management Studio, among 
others. 
Mr. Miroshnichenko further stated the following: 
Please note that this is not an itinerary H-lB in that [the beneficiary] will be assigned 
to work at our offices at 
[The petitioner] is the actual employer in that we retain the authority to pay, hire, fire, 
and supervise [the beneficiary] and control his work product. 
With respect to the educational requirement for the proffered position, Mr. stated in 
a letter dated August 19, 2014 that "[d]ue to the complex nature of [the proffered position's] work, 
this position requires the services of someone with at least a bachelor's degree in computer 
science/engineering, a related field, or the equivalent " 
In a letter dated October 9, 2014 letter,2 Mr. stated that the petitioner has work to 
perform for clients, but that the beneficiary would be assigned to work on the petitioner's in-house 
project, avia4us.com, 3 an "automatic travel reservations engine." Mr. stated that the 
petitioner anticipates that the avia4us.com project will require 11,000 hours of work to be fully 
operational. He further stated that the proffered position requires a bachelor's degree in computer 
science or a related field because it "requires advanced knowledge of architecture, design, software 
implementation, web applications, web services, SQL Database design, development, optimization 
and profiling" and "debugging, tracing and logging skills to find and resolve issues on [the 
petitioner's] production servers, QA and UAT environments." 
2 Although that letter has a typewritten date of October 9, 2014 on the first page, Mr. 
signature on the second page is accompanied by a handwritten date of October 3, 2014. 
3 The petitioner also refers to ' 
project as' 
as simply "avia4us." For consistency's sake, we will refer to the 
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III. EMPLOYE R-EMPLOYEE 
A. The Law 
NON-PRECEDENT DECISION 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-1B nonimmigrant in pertinent part as an alien: 
subject 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.F.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 also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
B. Analysis 
Although "United States employer" is defined in the regulations at 8 C. F.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 an alien 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)(1) of the Act, 
8 U.S.C. § 1182(n)(1) (2012). The intending employer is described as offering full-time or part-time 
"employment" to the H-lB "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 Petition for a Nonimmigrant Worker (Form 1-129) in order to classify aliens 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-lB beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of any 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
such employee." 8 C.F.R. § 214.2( h)(4)(ii) (defining the term "United States employer"). 
Neither the former 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-1B visa classification, even though the regulation describes H-1B beneficiaries as 
being "employees" who must have an "employer-employee relationship" with a "United States 
employer." !d. Therefore, for purposes of the H-1B 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." 
Darden, 503 U.S. at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. at 751-
752); see also Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 445 (2003) 
(hereinafter "Clackamas"). 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 (quotingNLRB v. United Ins. Co. 
of America, 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)(1)(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. H123 58 (daily ed. Oct. 27, 
1990). On the contrary, in the context of the H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.4 
4 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
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.P.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. P.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. 5 
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.P. R.§ 214.2(h). 6 
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 corrunon-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C. P.R. 
Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 1992), affd, 27 F.3d 800 (2nd Cir.), cert. denied, 
513 U.S. 1000 (1994). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 10l(a)(15 )(H)(i)(b) of the Act, "employment" in section 212(n)(1)(A)(i) of the Act, or "employee" in 
section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. Instead, in the context of 
the H-1B visa classification, the term "United States employer" was defined in the regulations to be even 
more restrictive than the common law agency definition. A federal agency's interpretation of a statute whose 
administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). 
5 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, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) 
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 
(1945)). 
6 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-1B intracompany transferees having specialized knowledge); section 274A of the Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
§ 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 323-324; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency § 220(2) (1958). Such indicia of control include when, 
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 New Compliance 1\fanual, Equal Employment Opportunity Commission, § 2-III(A)(1) 
(adopting a materially identical test and indicating that said test was based on the Darden decision); see 
also Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) (determining that hospitals, as the 
recipients of beneficiaries' services, are the "true employers" of H-1B nurses under 8 C.F.R. § 214.2(h), 
even though a medical contract service agency is the actual 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 448-449; New Compliance Manual 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, and 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."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, 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 ." 
While social security contributions, worker's compensation contributions, unemployment insurance 
contributions, federal and state income tax withholdings, and other benefits are still relevant factors 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
in determining who will control an alien 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 
alien 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 relevant factors, we 
are unable to find that the requisite employer-employee relationship will exist between the petitioner 
and the beneficiary. 
In the instant case, the petitioner first asserted that the beneficiary would work on a "complex set of 
Web-based applications for booking travel reservations. " As to this project, the service center's RFE 
specifically requested: 
Evidence of sufficient production space and equipment to support the benef iciary's 
specialty occupation work. 
Copies of critical reviews of your software in trade journals that describes [sic J the 
purpose of the software, its cost, and its ranking among similarly produced software 
manufacturers; 
Copy of the marketing analysis for your final software product; and/or 
Copy of a cost analysis for your software product. 
In response to the RFE, the petitioner submitted, inter alia: (1) a document headed, "Architectural 
Design and API Specifications for Travel reservations engine" that purports to describe a project; 
(2) documents, including master services agreements (MSAs), Work Orders, Statements of Work 
(SOWs), etc., pertinent to the assignment of the petitioner's workers to work at other companies' 
sites, on those other companies' projects, generally through at least one intermediary; (3) a letter, 
dated January 22, 2014, from signing as an HR Generalist at , , 
of Texas; (4) another letter from Ms. dated August 11, 2014; (5) a letter, dated June 
1, 2014, offering the proffered position to the beneficiary; and (6) a letter, dated July 24, 2014, from 
signing as CEO of ' 
Illinois. 
The "Architectural Design and API Specifications for Travel reservations engine" purports to 
describe either a project under development or an application available for installation. It does not 
clarify whether the petitioner developed or is developing this project. Although it contains 
references to it is not accompanied by any evidence that the petitioner has any business 
relationship with � While the letters from refer to ongoing business 
relationships they have with the petitioner, they do not specifically mention the "Web-based 
applications for booking travel reservations" project or any work that will specifically be assigned to 
the beneficiary. 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
We note that the petitioner provided an undated document entitled "Business Plan International 
Travel Agency'' which identified a specific project ' ' with the Form I-129. In the 
"Executive Summary" portion of the business plan, the petitioner stated that the 
project will be a sole proprietorship owned and operated by [the petitione r]," and described 
in its "Management Summary" as "a small organization." The business plan also states 
that the petitioner expects to have a "stable work-load for the _ _ project for at lea�t 2-3 
Computer Systems Analysts in 2014-2015 with the possibility of growing the team to the size qf 4-7 
in 2015-20 17. " As described in the "Mission" portion of the business plan, is a travel 
agency providing consulting and custom travel arrangements and packages. The plan further 
elaborates that avia4us.com will be "a full service agency [that] sells standard travel agency goods 
and services, including airfare and travel packages," as well as offering additional services such as 
"assistance with passports, [and] providing access to top-of-the-line equipment and supplies." The 
plan further describes twofold "distribution strategy" as to: (1) "focus on the target 
market in the _ area to whom it will sell directly"; and (2) "establish distribution capability on 
the World Wide Web." The plan lists the sales objectives as to achieve sales of $200,000 in the first 
year of operations, and $800,000 by the third year of operations. 
The record, however, does not contain sufficiently detailed evidence of the job duties the beneficiary 
specifically would perform in relation to the project. While the petitioner asserts that 
there are over 11,000 hours of work to reach the project's operating capacity, it has not explained 
how many of those hours would be assigned to the beneficiary, or which of the particular duties 
would be assigned to him. We note that the business plan references "2014-2015" and "2015-2 017," 
but at no time does -it describe, in detail, the extent of the project and its timeline with respect to the 
proffered position and the intended employment dates requested on the Form I -129. 
In fact, there are questions about the credibility of the petitioner's claimed in-house employment for 
the beneficiary, i.e., the development of the petitioner's claimed proprietary travel reservation 
engine, The evidence of record lacks sufficient, credible evidence demonstrating that 
is a bona fide project which actually exists and is being developed by the petitioner. 
For instance, the petitioner asserts that all work on this "project" will take place on-site at the 
petitioner's business premises located at the address listed on the Form I-129, specifically, 
Illinois. However, there are several references to 
as being an altogether separate business entity located separately from the petitioner. The 
petitioner's business plan describes as a "sole proprietorship" as well as a "small 
organization." It describes as not only being a travel reservation engine, but "a full 
service agency" that will "sell directly" to its target customers, in addition to providing online sales 
and services (emphasis added). Further, the petitioner confusingly states that is 
"located in the heart of the " while also stating that it "has identified three 
potential locations for office space" for m , Illinois. 
The petitioner has not provided sufficient evidence that it actually has an in-house project 
developing the on-line reservation system as it claims. As such, it has not demonstrated 
that the beneficiary would work on that project. The petitioner's response to the RFE and the 
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NON-PRECEDENT DECISION 
Page 10 
"TRAVEL" clause in the petitioner's June 1, 2014 letter offering employment to the beneficiary 
strongly suggest that the petitioner intends, if the visa petition is approved, to provide the beneficiary 
to other companies to work at their locations on their projects, as such work becomes available. The 
evidence, however, is insufficient to show that while the beneficiary is at those remote sites working 
for those other companies, the petitioner would assign the beneficiary's tasks and supervise his 
performance of them. 
The evidence, therefore, is insufficient to establish that the petitioner qualifies as a United States 
employer, as defined by 8 C.P.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 of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm'r 1972)). The evidence of record prior to adjudication did not establish that the 
petitioner would act as the ben eficiary's employer in that it will hire, pay, fire, or otherwise control 
the work of the beneficiary. Despite the Director's specific request for evidence such as a letter. from 
the end client, the petitioner failed to submit such evidence. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. 
§ 103.2(b)(14). 
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-1B temporary 
"employee." 8 C. P.R. § 214.2(h)(4)(ii). The appeal will be dismissed and the petition denied for 
this reason. 
IV. SPECIALTY OCCUPATION 
The remaining issue discussed in the decision of denial is whether the petitioner has demonstrated 
that, if the visa petition were approved, the petitioner would employ the benef iciary in a specialty 
occupation. 
A. The Law 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation " as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C. F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
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Page 11 
NON-PRECEDENT DECISION 
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 
attainment of a bachel or'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.P.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 1s normally the mtmmum 
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. 
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)(1) 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. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW­
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.P.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 
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degree, but one in a specific specialty that is directly related to the proffered position. See Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in a 
specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-1B petitions for qualified aliens 
who are to be employed as engineers, computer scientists, certified public accountants, college 
professors, and other such occupations. These professions, for which petitioners have 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-1B 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. USCIS must examine the 
ultimate employment of the alien, 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 nor 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, supra, where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. See 
Defensor v. Meissner, 201 F.3d at 387-388. The court held that the former Immigration and 
Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. /d. at 384. Such 
evidence must be sufficiently detailed to demonstrate the type and educational level of highly 
specialized knowledge in a specific discipline that is necessary to perform that particular work. 
B. Analysis 
As was explained above, the evidence does not demonstrate that the beneficiary would work on an 
in-house project and does not demonstrate where else the beneficiary would work or on what other 
subject matter. The lack of clarity regarding the beneficiary's actual tasks and job responsibilities 
precludes a finding that the proffered position is a specialty occupation under 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 
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complexity of the specific duties, which is the focus of criterion 4. The visa petition must be denied 
on this basis alone. 
Also, at a more basic level, as reflected in this decision's discussion of the evidentiary deficiencies, 
the record lacks credible evidence that when the petitioner filed the petition, the petitioner had 
secured work of any type for the beneficiary to perform during the requested period of employment. 
That is, the petitioner asserted that the beneficiary would be developing its in-house 
on-line travel reservation project, but provided insufficient evidence of the existence of such a 
project. Further, although evidence suggests that the petitioner intends to assign the beneficiary to 
work on other companies' projects at other companies' locations, the record does not show that the 
petitioner had secured such work for the beneficiary when it filed the visa petition. 
Thus, we conclude that the record of proceeding provides an inadequate factual basis for us to 
determine that, at the time of the petition's filing, the petitioner had secured for the beneficiary definite, 
non-speculative work conforming to the petition's description of the proffered position. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. 103.2(b )(1). A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248. 8 Moreover, 
7 Much of the petitioner's evidence, including letters and vacancy announcements, is directed toward 
demonstrating that computer systems analyst positions qualify as specialty occupation positions by virtue of 
requiring a minimum of a bachelor's degree in a specific specialty or its equivalent. However, as the 
petitioner has not demonstrated the nature of the duties the beneficiary would perform if the visa petition were 
approved, it has not demonstrated that the proffered position is a computer systems analyst position. As such, 
that evidence has not been shown to have any direct relevance to whether the proffered position is a specialty 
occupation position. Further, we note that the petitioner has cited the U.S. Department of Labor's 
Occupational Outlook Handbook (Handbook) on appeal as evidence that computer systems analyst positions 
qualify as specialty occupation positions. However, even if the proffered position had been shown to be a 
computer systems analyst position, the Handbook would not be persuasive evidence that it is a specialty 
occupation position, as the Handbook does not indicate that computer systems analyst positions, as a 
category, require a minimum of a bachelor's degree in a specific specialty or its equivalent. See U.S. Dep't of 
Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15 ed., "Computer Systems 
Analysts," http://www. bls.gov /ooh/compu ter -and -information-tech no logy/computer -systems-analysts. h tm# 
tab-4 (last visited May 12, 2015), which indicates computer systems analyst positions do not require a 
specialized degree or the equivalent, but that a business or liberal arts degree and skills in information 
technology or computer programming may be sufficient. 
8 The agency made clear long ago that speculative employment is not permitted in the H-1B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1B classification is not intended as a vehicle 
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the burden of proving eligibility for the ben efit sought remains entirely with the petitioner. 8 U.S.C. 
1361 (Section 291 of the Act). The petitioner has thus not established that, at the time the petition was 
submitted, it had secured work for the beneficiary that would entail performing the duties as described in 
the petition and that was reserved for the beneficiary for the duration of the period requested. 
V. CONCLUSION 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enter prises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), ajfd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of the enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1037, affd. 345 F.3d 
683; see also BDPCS, Inc. v. Fed. Communications Comm 'n, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 
("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any 
one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that 
basis if the alternative grounds were unavailable."). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
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-1B 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-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon arrival in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employme nt, 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). 
The regulation at 8 C.P .R. § 214.2(h)(9)(i)(B) also contemplates that speculative employment is not permitted 
stating that a "petition may not be filed ... earlier than 6 months before the date of actual need for the 
beneficiary's services or training .. .. " 
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the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 df the 
Act, 8 U.S.C. § 1361 ; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. The petition is denied.