dismissed H-1B Case: Computer Science

(b)(6)
DATE: JUL 0 8 2015 
IN RE: Petitioner: 
Beneficiary: 
lJ.S. Departm(~nt of Homdand Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT#: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. § 110l(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
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 requirements for motions are located at 8 C.F.R. § 1 03.5. 
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 requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~ 
Ron Rosen berg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
I. PROCEDURALBACKGROUND 
In the Petition for a Nonimmigrant Worker (Form I-129), the petitioner describes itself as an 
advanced computer software development and consulting firm with 49 employees, established in 
In order to employ the beneficiary in what it designates as a programmer analyst/filenet 
position, the petitioner seeks to classify him as a nonimmigrant worker in a specialty occupation 
pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The Director denied the petition, concluding that the petitioner did not establish that it meets the 
regulatory definition of a United States employer and that the evidence of record did not establish 
that the proffered position qualifies as a specialty occupation. 1 On appeal, the petitioner asserts that 
the Director's basis for denial was erroneous and contends that it satisfied all evidentiary 
requirements. 
The record of proceeding contains: (1) the Form I-129 and supporting documentation; (2) the 
Director's requests for additional evidence (RFE); (3) the petitioner's responses to the RFEs; ( 4) the 
Director's letter denying the petition; and (5) the Notice of Appeal or Motion (Form I-290B) and 
supporting documentation. We reviewed the record in its entirety before issuing our decision. 2 
For reasons that will be discussed below, we agree with the Director that the petitioner has not 
established eligibility for the benefit sought. Accordingly, the Director's decision will not be 
disturbed. The appeal will be dismissed. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
A. Legal Framework 
For an H-lB petition to be granted, the petitioner must establish that it meets the regulatory 
definition of a United States employer. 8 C.F.R. § 214.2(h)(4)(ii). Specifically, the petitioner must 
establish that it will have "an employer-employee relationship with respect to employees under this 
1 
The director also found that the beneficiary failed to maintain nonimmigrant status in the United States. On 
appeal, the petitioner asserts that the director erred in finding that the beneficiary had not maintained his 
nonimmigrant status. However, we have no jurisdiction over this matter, as issues surrounding the 
beneficiary's maintenance of nonimmigrant status are within the sole discretion of the director. 
2 
We conduct appellate review on a de novo basis. SeeSoltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
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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." !d. 
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 othenvise control the work ofany such employee; and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see also 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991). 
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
lB visa classification. Section 10l(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)(l) (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 I-129) in order to classify aliens as 
H-1B 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-IB 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 former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
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Services (USCIS) defined the tem1s "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." !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 tem1 
"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 Communityfor Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). The Supreme Comi 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 mrumer 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-Yiolence 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 plu·ase 
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 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 10l(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) ofthe 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-1 B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.3 
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. § 1 002(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., Bmvers v. 
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) . 
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Specifically, the regulatory definition of "United States employer'' requires H-IB 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 tenns "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. Cl 
Darden , 503 U.S. at318-319. 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) ofthe Act, section 212(n) ofthe Act, and 8 C.P.R.§ 214.2(h).5 
Therefore, in considering whether or not one Vlrill be an "employee" in an "employer-employee 
relationship" with a ''United States employer" for purposes of H-1 B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of "control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(l5)(H)(i)(b) ofthe 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-1 B 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, USA., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 844-845 (I 984) . 
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 Rober tson 
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)). 
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-IB intracompany transferees having specialized knowledge); section 274A ofthe Act, 8 U.S.C. 
§ 1324a (referring to the employment of unauthorized aliens). 
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§ 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 Ne·w Compliance Manual, Equal Employment Opportunity Commission, § 2-III(A)(l) 
(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" ofH-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."' !d. at 451 (quoting Darden, 503 U.S. at 324). 
B. Analysis 
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In the Form I-129 and its supporting documents, the petitioner indicated that the beneficiary will be 
working off-site at 6 The 
documents in the record of proceeding indicate that the petitioner assigned the beneficiary to the 
end-client, through a middle-vendor, 
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-IB temporary "employee." We examined each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the evidence, and 
find that the petitioner did not establish the requisite employer-employee relationship with the 
beneficiary. Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
For H-1B classification, the petitioner is required to submit written contracts between the petitioner 
and the beneficiary, or if there is no written agreement, a summary of the terms of the oral agreement 
under which the beneficiary will be employed. See 8 C.P.R. § 214.2(h)(4)(iv)(A) and (B). The 
record contains an employment offer letter signed by the petitioner and the beneficiary on August, 
11, 2014. The letter states that the beneficiary will be working as "Programmer Analyst/FileNet" 
and the beneficiary "is scheduled to start on August 25, 2014." 7 The letter further states that "[t]his 
will be a Full-time position with the IT division of [the petitioner] based out of the office located in 
MN." It also indicates that the "overall function of the occupation is to develop and maintain 
software projects in-house at [the petitioner's] or with various related business partners of [the 
petitioner]." 
Moreover, the record contains an employment agreement dated August 11, 2014. It states, in section 
6 In the letter from 
"contracted to work at 
dated August II, 2014, indicated that the beneficiary would be 
." The petitioner also noted 
, as the work location in the accompanying Labor Condition Application. 
ln response to the Director's first RFE, the petitioner provided a statement from stating that their 
initial letter contained a typographical error and that the beneficiary was always intended to be placed at 
In response to the second RFE, the petitioner provided an updated letter from 
describing the beneficiary's placement at and a letter from 
confirming the beneficiary's employment. 
A search of public records reveals that is the address of 
and no other businesses. Given that this is the work location provided by the petitioner on the Form 1-
129, LCA, and original itinerary, we find it credible that the mention of by was a 
scrivener's error. Therefore, we will proceed with the analysis of the employer-employee relationship, as it 
concerns the beneficiary's proposed placement, with as the end-client. 
7 USC IS records show that the beneficiary was employed by a different company, pursuant to a previously 
approved H-I B petition, from November 25, 2013 to December 21, 2014. The instant petition was filed on 
August 27, 2015. 
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7 "Employee Obligation," that "[the beneficiary is] obligated to submit a [sic] Itinerary of service at 
the beginning of [his] contract explaining [his] tasks, duties and responsibilities for the period of the 
contract." It further states that the employee is "responsible to provide [the petitioner] with the 
approved timesheets by the last day of every month. These timesheets must be approved by the 
client ... " Therefore, while the beneficiary is required to submit a time sheet to the petitioner on a 
monthly basis, it appears that it is the client that assigns tasks, duties and responsibilities and 
approves the hours worked. While an employment agreement may provide some insights into the 
relationship of a petitioner and a beneficiary , it must be noted again that 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. 
The record also contains a sub-vendor agreement with dated 
August 14, 2017. This 
agreement provides that placement of any contract worker is subject to the approval of · . 
and their customer. The agreement states "[the petitioner] acknowledges that Contract Workers 
supplied by [the petitioner] shall be subject to the continuing approval of Customer. Either 
or Customer[ ]May request the removal of Contract Worker at any time for any lawful 
reason." This agreement also states: 
WHEREAS, and its customer(s) ("Customer(s)") are parties to as 
Service Agreement (the "Customer Agreement") pursuant to which 
has agreed to provide temporary staffing services to Customer. 
WHEREAS , in connection with the performance of obligations to 
its Customer under the Customer Agreement, desires to retain [the 
petitioner] to supply in certain instances, and [the petitioner] desires to supply in 
certain instances, Contract Workers to the Customer , based on the terms and 
conditions of this Agreement. 
The petitioner did not submit a copy of the above referenced "Customer Agreement," which would, 
provide the terms and conditions that would govern the beneficiary's placement at any customer site. 
Additionally , while the work order attached to the sub-vendor agreement names the beneficiary, it 
does not provide information such as the name of the end-client , the duration of the project, the 
location of the project, or a description of the project. Without full disclosure of the facts, we are 
unable to find that the requisite employer-employee relationship will exist between the petitioner and 
the beneficiary. 
The petitioner also submitted letters from In a letter dated August 11, 2014, the 
petitioner indicates that the beneficiary will be contracted to work at 
The letter further states that the beneficiary's contract is "scheduled to commence on August 
25, 2014 and is expected to be a long term project exceeding three years." This appears to contradict 
the petitioner's offer letter which states that the beneficiary will be based out of its office in 
MN. Further, in another letter dated October 8, 2014, indicate that "the duration of this 
project is ongoing and is expected to exceed two years." The petitioner did not explain the 
discrepancies. 
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Furthermore, the letter from the middle-vendor, , and the letter from the end-client, 
both state that "[a]lthough the on-site manager assigns general direction, [the 
petitioner] will be responsible for [the beneficiary's] supervision off-site through timesheet 
approvals, status reports and calls." These letters do not clarif)r that the on-site manager is employed 
by the beneficiary, and appear to indicate that the end-client, not the petitioner will supervise the 
beneficiary in the course of his daily duties. The petitioner also submitted a copy of its 
organizational chart. While the organizational chart shows the beneficiary reporting to a "Project 
Manager/Department Head," the petitioner has not offered further information on where this 
individual is located and how he/she will provide day-to-day control and supervision of the 
beneficiary. The record also contains a document titled "Performance Management Overview." 
However, this appears to be a general template and guidance about performance assessment and 
lacks sufficient information regarding how work and performance standards were established, the 
methods for assessing and evaluating the beneficiary's performance, the criteria for determining 
bonuses and 
salary adjustments, etcetera. Importantly, there is a lack of information as to how the 
day-to-day work of the beneficiary has been and will be supervised and overseen. 
In response to the RFE, the petitioner submitted additional documentation, including quarterly wage 
reports and federal income tax returns. We acknowledge that the method of payment of wages can 
be a pertinent factor to determining the petitioner's relationship with 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 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. Given the documentation discussed above, we are unable to find that the 
requisite employer-employee relationship will exist between the petitioner and the beneficiary. 
The evidence in the 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 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 beneficiary's employer in that it 
will hire, pay, fire, or otherwise control the work of the beneficiary. 
Further, we find the record does not establish that the petitioner has available non-speculative work 
for the beneficiary in a specialty occupation. The Form I-129 states that the petitioner intends to 
employ the beneficiary as a programmer analyst/ FileNet from August 25,2014 to August 17, 2017. 
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As discussed above, the record of proceeding contains a letter from the end-client 
dated September 29, 2014. In this letter, the end-client writes that the duration of the project to 
which the beneficiary has been assigned, is ongoing and is expected to exceed two years. As 
mentioned, the letters from provide inconsistent information regarding the length of the 
projects. The petitioner has not provided evidence that it has available work in a specialty 
occupation for the remaining year ofthe requested H-lB validity period. Accordingly, the evidence 
in the record does not establish that the petitioner has work in a specialty occupation for the 
beneficiary for the duration of the requested H-IB validity period. 
Therefore, we find that the petitioner has not established that the petition was filed for non-speculative 
work for the beneficiary, for the entire period requested, that existed as of the time of the petition's 
filing. users 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. 1 03 .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. Thus, even 
if it were found that the petitioner would be the beneficiary's United States employer as that term is 
defined at 8 C.F.R. § 214.2(h)(4)(ii), the petitioner has not demonstrated that it would maintain such 
an employer-employee relationship for the duration of the period requested. 8 
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). 
8 The agency made clear long ago that speculative employment is not permitted in the H-1 B program. For 
example, a 1998 proposed rule documented this position as follows: 
Historically, the Service has not granted H-1 B classification on the basis of speculative, or 
undetermined, prospective employment. The H-1 B classification is not intended as a vehicle 
for an alien to engage in ajob search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from potential business 
expansions or the expectation of potential new customers or contracts. To determine whether 
an alien is properly classifiable as an H-1 B nonimmigrant under the statute, the Service must 
first examine the duties of the position to be occupied to ascertain whether the duties of the 
position require the attainment of a specific bachelor's degree. See section 214(i) of the 
Immigration and Nationality Act (the "Act"). The Service must then determine whether the 
alien has the appropriate degree for the occupation. In the case of speculative employment, 
the Service is unable to perform either part of this two-prong analysis and, therefore, is 
unable to adjudicate properly a request for H-1 B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon an-ivai in this country. 
63 Fed. Reg. 30419, 30419 - 30420 (June 4, 1998). While a petitioner is certainly permitted to change its 
intent with regard to non-speculative employment, e.g., a change in duties or job location, it must nonetheless 
document such a material change in intent through an amended or new petition in accordance with 8 C.F.R. § 
214.2(h)(2)(i)(E). 
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III. SPECIALTY OCCUPATION 
Furthermore, we find that the record does not establish that the beneficiary would be employed in a 
specialty occupation, as defined by applicable statues and regulations, for the duration of the 
requested H -1 B validity period. 
In this matter, the record contains material inconsistencies concerning the description of the 
proffered position. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter o.fHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Specifically, the employment offer letter describes the proffered position as: 
[D]esigning, implementing and ensuring the design, development and 
implementation of Software for computer systems at [the petitioner] and many of 
our clients. The overall function of the occupation is to develop and maintain 
software projects in-house at [the petitioner] or with various related business 
partners of [the petitioner]." 
However, the letter from dated August 11, 2014 identifies the proposed position as a 
"Programmer Analyst/FileNet," with the following responsibilities: 
• Analyze, design, develop, prototype, implement and enhance software in order to 
meet current and future customer business requirements. 
• Develop IBM FileNet Content/Business Process Management products and 
Java!J2EE Technologies[.] 
• Develop and write applications IBM FileNet Content/Business Process 
Management products, Java!J2EE Technologies and other object-based 
technologies. 
• Develop workflow Management solutions design, development and intuitive 
architecture. Content Engine (CE), Application Engine (AE), Process Engine 
(PE), Business Process Framework (BPF), FileNet Application Programming 
Interface, FileNet 3.5/4.x/5.x (CE, PE, and BPF API's), IBM FileNet 
Workplace/Workplace XT, [sic] Records Manager, IBM FileNet Content 
Manager Java API Programming, eForms (eForms Designer). 
• Proficient in developing Multi-Tier Enterprise applications using JAVA, J2EE 
Standards, JSP, Servlets, MVC Struts, Hibernate, JDBC, Core JAVA, XML, 
HTML, AJAX, JavaScript. 
• Involved in entire Project Life Cycle for various projects, which includes 
analyzing the Customer Requirements, 
System Design, Database Design, End 
User Training and Implementation. 
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• Programming using PL/SQL, (SQL Queries, Stored Procedures) DB2, Oracle, 
SQL Server, Database environments. 
• Developing and deploying FileNet based enterprise and content management 
solutions. 
• Administration for BPM and CM Suites. 
In response to the first RFE from the Director, the petitioner provided another letter from 
and letter from the end-client, , which both describe the proffered 
position as an "IBM FileNEt P8 Developer and Administrator," with the following responsibilities: 
• Identifies requirements by establishing personal rapport with potential and actual clients and 
with other persons in a position to understand service requirements with a thorough technical 
knowledge. 
• Arranges project requirements in programming sequence by analyzing requirements; 
preparing a work flow chart and diagram using knowledge of computer capabilities, subject 
matter, programming language, and logic. 
• Solutioning with FileNet suite including experience with one or all of the following tools: 
Content Navigator, Process Engine, IBM Info sphere, Enterprise Records, Document 
Management, Bar Code Capture OCR,[]ICC with email and Sharepoint. 
• Production support within FileNet or external application development environment 
including installing or upgrading P8 components, patches, and bug fixes. Configuring 
existing FileNet P8 tools. 
• Lead the effort to provide technical support to system owners as well as other information 
technology groups to help ensure effectiveness of information technology systems in 
enabling our client's customers to conduct day-to-day businesses. The support includes, but 
is not limited to, answering customer questions, interpreting system functionalities, 
completing data requests, making emergency fixes and performing other critical support 
functions. 
• Maintains professional and technical knowledge by attending educational workshops; 
reviewing professional publications. 
As stated by the director, the discrepancies between the various. position descriptions prevent us 
from fully evaluating the proffered position and preclude us from determining that the proffered 
position is a specialty occupation. 9 
9 In the LCA filed with the initial petition, the petitioner classified the proposed programmer analyst position 
as a "Software Developer-Applications" - SOC 15-1132.00. However, on appeal, the petitioner submitted a 
printout from the U.S. Department of Labor's (DOL's) Occupational Outlook Handbook (Handbook) for 
Computer Systems Analyst as evidence that the proffered position should be considered a specialty 
occupation. 
However, we note that even if we were able to conclude that the proffered positon would be that of a 
computer systems analyst, the Handbook does not support the assertion that the normal minimum entry 
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On appeal, the petitioner asserts that the "job title and position description along with supporting 
documents are in a relatively standard format used by many petitioner in the industry where a more 
general description may be used to describe the Beneficiary's work before a more specific set of 
duties is determined for the project." However, 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 8 C.F.R. § 103.2(b)(l); Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 
1978). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of Izummi, 22 l&N Dec. 169, 176 (Assoc. 
Comm'r 1998). 
Because the petitioner has not resolved the inconsistencies with objective evidence or satisfactorily 
explained the noted discrepancies, the petitioner has not established 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). We note that 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. 
Accordingly, as the petitioner has not established that it has satisfied any of the criteria at 8 C.F .R. § 
214.2(h)( 4 )(iii)(A), it cannot be found that the proffered position qualifies as a specialty occupation. 
For this additional reason, the appeal will be dismissed and the petition denied. 
requirement to become a computer systems analyst is the obtainment of a baccalaureate degree in a specific 
specialty, or its equivalent. Specifically, the Handbook states that while a bachelor's degree in a computer or 
information science field is common, it is not a requirement, and some companies hire analysts with business 
or liberal arts degrees who have skills in information technology or computer programming. Therefore it 
would not be considered a specialty occupation, absent additional evidence from the petitioner that it met one 
of the criteria stated at 8 C.F.R. § 214.2(h)(4)(iii)(A). We recognize the Handbook as an authoritative source 
on the duties and educational requirements of the wide variety of occupations that it addresses. The Handbook , 
which is available in printed form, may also be accessed on the Internet, at http://www.bls.gov/oco/. All of 
our references to the Handbook are to the 2014-2015 edition available online. 
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IV. CONCLUSION AND ORDER 
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; Matter ofOtiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 10 
ORDER: The appeal is dismissed. 
10 Since the identified basis for denial is dispositive of the petitioner's appeal, we will not address additional 
ground s of ineligibility we observe in the record of proceeding.