dismissed H-1B Case: Computer Science

MATTER OFT- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 10, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer company, seeks to temporarily employ the Beneficiary as a "systems 
analyst" under the H-lB nonimmigrant classification for specialty occupations. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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 of the California Service Center denied the petition, concluding that ( 1) the pro tiered 
position does not qualify as a specialty occupation, and (2) the Petitioner did not sufficiently 
establish that it qualifies as a United States employer with an employer-employee relationship with 
the Beneficiary. 
On appeal, the Petitioner submits additional evidence and asserts the proffered position qualifies as a 
specialty occupation, and the Petitioner qualifies as the employer. Upon de novo review, we will 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 214(i)(l) of the Act, 8 U.S.C. § 1184(i)(l), defines the term "specialty occupation" as an 
occupation that requires: 
(A) theoretical and practical application of a body of highly specialized 
knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) largely restates this statutory definition, but adds a non­
exhaustive list of fields of endeavor. In addition, the regulations provide that the proffered position 
must meet one of the following criteria to qualify as a specialty occupation: 
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. Matter ofT- LLC 
(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 
knowledge required to perform the duties is usually associated with the 
attainment of a baccalaureate or higher degree. 
8 C.F.R. § 214.2(h)(4)(iii)(A). We have consistently interpreted the term "degree" to mean not just 
any baccalaureate or higher degree, but one in a specific specialty that is directly related to the 
proposed position. See Royal Siam Corp. v. 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"); Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). 
II. PROFFERED POSITION 
The Petitioner stated that the Beneficiary will serve as a systems analyst. According to the 
Petitioner, the Beneficiary will work offsite at the vender's facility. The Petitioner provided the 
following information about the path of contractual succession: 
l ] J 
In response to the Director's request for evidence , the Petitioner provided the following job 
description for the Beneficiary: 
• 
• 
• 
• 
RESPONSIBILITY 
Design, Develop, Implementation and testing _ of SOA solutions using 
ETL, EDI, XML technologies 
Improve business process through process re-engmeenng and 
automation as appropriate. 
Implement ETL and database management process to provide 
integration between disparate systems. 
Analyze business requirements and convert these requirements to 
technical specifications. 
2 
) 
/ 
~. 
%OF TIME 
ALLOCATED 
30% 
20% 
20% 
Matter ofT- LLC 
• Build technical prototype as per the business requirements and technical 
specifications. 
• Document system issues, design flows, unit test results. 10% 
• Adapt and implement software development standards and best 20% 
practices. 
• Participate in system design and code reviews . 
• Troubleshoot and resolve data, system and performance issues . 
Technical Environment: Java, ETL, JSP, Servlets, Struts, Spring, Hibernate, 
Web Services, EDI, Informatica, JMS, JDBC, SQL, DB2, ESB, Tivoli, SQL 
server, Linux, Unix, Solaris and Windows. 
According to the Petitioner, the position requires "a Bachelor's degree in relevant discipline such as 
computer science, engineering, computer information systems, or a related area, or the equivalent." 
III. ANALYSIS 
Upon review of the record in its totality and for the reasons set out below, we determine that the 
Petitioner has not demonstrated that the proffered position qualifies as a specialty occupation. 1 
Specifically, the record does not establish (I) the substantive nature of the proffered position, and (2) 
that the job duties require an educational background, or its equivalent, commensurate with a 
specialty occupation.2 
A. Job Duties 
On appeal, the Petitioner expanded the job description for the proffered position, adding 26 
additional tasks. They are distinct. For example, on appeal, the Petitioner claims the Beneficiary 
will "provide application subject matter expertise and solution integrations management processes;" 
"distill essential core requirements;" "independently troubleshoot production, data and workflow 
issues and resolve issues;" and "develop function and stored procedures." These tasks do not appear 
in the initial job description. 
The Petitioner must establish that the position offered to the Beneficiary when the petition was filed 
merits classification for the benefit sought. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 
(Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make 
a deficient petition conform to United States Citizenship and Immigration Services (USCIS) 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). We are unable 
to reconcile the Petitioner's statements given that it submitted two distinctly different job 
descriptions. 
1 
The Petitioner submitted documentation to support the H-1 B petition, including evidence regarding the proffered 
position and its business operations. While we may not discuss every document submitted, we have reviewed and 
considered each one. 
2 
Although some aspects of the regulatory criteria may overlap, we will address each of the criteria individually. 
3 
Matter ofT- LLC 
Nevertheless, assuming, for the sake of argument, that the proffered duties as described in the record 
would in fact be the duties to be performed by the Beneficiary, we will analyze them and the 
evidence of record to determine whether the proffered position as described qualifies as a specialty 
occupation pursuant to the criteria at 8 C.F:.R. § 214.2(h)( 4 )(iii)(A). 
B. First Criterion 
We tum first to the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l), which requires that a baccalaureate 
or higher degree in a specific specialty, or its equivalent, is normally the minimum requirement for 
entry into the particular position. To inform this inquiry, we recognize the U.S. Department of Labor's 
(DOL) Occupational Outlook Handbook (Handbook) as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses.3 
On the labor condition application (LCA)4 submitted in support of the H-IB petition, the Petitioner 
designated the proffered position under the occupational category "Computer Systems Analysts" 
corresponding to the Standard Occupational Classification code 15-1121 at a Level I wage. 5 
The Handbook's subchapter entitled "How to Become a Computer Systems Analyst" states, in 
pertinent part, that a bachelor's degree is not always a requirement and that "[s]ome firms hire 
analysts with business or liberal arts degrees who have skills in information technology or computer 
programming." 6 It also states: "Although many computer systems analysts have technical degrees, 
3 
All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and we regularly review the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to .submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
4 
The Petitioner is required to submit a certified LCA with the H-1 B petition demonstrate that it will pay the worker the 
higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage 
paid by the employer to other employees with similar experience and qualifications who are performing the same 
services. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). 
5 The Petitioner classified the proffered position at a Level I wage (the lowest of four assignable wage levels). We will 
consider this selection in our analysis of the position. The "Prevailing Wage Determination Policy Guidance" issued by 
the DOL provides a description of the wage levels. A Level I wage rate is generally appropriate for positions for which 
the Petitioner expects the Beneficiary to have a basic understanding of the occupation. This wage rate indicates: (I) that 
the Beneficiary will be expected to perform routine tasks that require limited, if any, exercise of judgment; (2) that he 
will be closely supervised and his work closely monitored and reviewed for accuracy; and (3) that he will receive 
specific Instructions on required tasks and expected results. DOL, Emp't & Training Admin., Prevailing Wage 
Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _11_ 2009.pdf A wage determination starts 
with an entry level wage and progresses to a higher wage level after considering the experience, education, and skill 
requirements of the Petitioner's job opportunity. !d. 
6 
Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Computer Systems Analysts (20 16-
17 ed.). 
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Matter C?f T- LLC 
such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere." 7 
According to the Handbook, a bachelor's degree is a directly related discipline not required for entry 
into the occupation. While the Handbook further reports that many analysts have technical degrees , 
it does not specify the degree level for these technical degrees (e.g., associate's degree). Further, the 
Handbook states that business and liberal arts degrees may be acceptable. 8 Thus, the Handbook does 
not support the claim that the occupational category of "Computer Systems Analysts" is one for 
which normally the minimum requirement for entry is a baccalaureate degree (or higher) in a 
specific specialty, or its equivalent. 
In support of the petition, the Petitioner references DOL's Occupational Information Network 
(O*NET) summary report for "Computer Systems Analysts." The summary report provides general 
information regarding the occupation; however, it does not support the Petitioner's assertion 
regarding the educational requirements for these positions. For example, the Specialized Vocational 
Preparation (SVP) rating cited within O*NET's Job Zone designates this occupation as 7 < 8. An 
SVP rating of 7 to less than ("<") 8 indicates that the occupation requires "over 2 years up to and 
including 4 years" of training. While the SVP rating indicates the total number of years of 
vocational preparation required for a particular position, it is important to note that it does not 
describe how those years are to be divided among training, formal education, and experience - and it 
does not specify the particular type of degree, if any, that a position would require.9 
Further, the summary report provides the educational requirements of "respondents." Notably , the 
total percentage of respondents does not equal I 00%. The report indicates that 36% of the 
respondents possess a bachelor's or higher degree, and all of the other individuals have less than a 
baccalaureate. The respondents' positions within the occupation are not distinguished by career 
level (e.g., entry-level, mid-level, senior-level). Moreover, the graph in the summary report does not 
indicate that the "education level" for the respondents must be in a specific specialty. 
The Petitioner also submitted a letter from In his letter, (1) describes the 
credentials that he asserts qualify him to opine upon the nature of the proffered position; (2) lists the 
duties proposed for the Beneficiary; (3) states that the duties require at least a bachelor's degree in 
computer science, engineering, or computer information systems; and ( 4) claims that these 
qualifications represent a common standard for parallel positions among similar organizations. We 
7 /d. 
8 As discussed supra, we interpret the term "degree" to mean a degree in a specific specialty that is directly related to the 
proposed position. Since there must be a close correlation between the required specialized studies and the position , the 
acceptance of general and wide-ranging degrees (such as business and liberal arts degrees) strongly suggests that such 
positions are not specialty occupations . See Royal Siam Corp., 484 F.3d at 147. Cf Matter of Michael Hertz Assocs., 19 
I&N Dec . 558, 560 (Comm 'r 1988). 
9 For additional information , see the O*NET Online Help webpage available at http ://www .onetonline .org/help/ 
online /svp . 
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Matter ofT- LLC 
carefully evaluated assertions in support of the instant petition but, for the following 
reasons, determined his opinions lent little probative value. 
To begin, we note that expertise, regarding current industry degree requirements for 
computer systems analysts; is not established in the record. His curriculum vitae indicates that most 
of his experience (since 1985 to the present) has been in the academic setting. He references his 
experience prior to teaching, but does not state how the industry has evolved in the past 30+ years. 
states that he has published several journal articles in the areas of information technology 
and business; however, his curriculum vitae indicates that his last journal publications were in the 
late 1990's and did not relate to the issue here. His curriculum vitae shows that he last presented at a 
meeting in 2005, over a decade before the instant petition was filed and, again, the issue was 
unrelated to the matter in the present case. did not provide further information regarding 
his qualifications to opine on the degree requirements for computer systems analysts. 
Moreover, has not provided sufficient information to establish his expertise on the 
practices of organizations seeking to hire computer systems analysts. Without further clarification , it 
is unclear how his education , training, skills or experience would translate to expertise regarding the 
current recruiting and hiring practices of an enterprise engaged in computer consulting or similar 
organizations for computer systems analysts (or parallel positions). states that companies 
come to the university campus where he works to recruit students. In addition, on appeal, Petitioner 
submits a revised letter from that states he routinely mentors and writes letters of 
recommendations for students seeking placement in the workforce. acknowledges that he 
has not worked in the industry for some time. Nevertheless, he claims to be aware of students 
looking for this type of job and the industry standard. However, without more, this is insufficient to 
demonstrate a degree requirement for entry into the occupation as this may simply indicate a 
preference by some companies to hire individuals with a degree. 
Additionally, provides a brief, general description of the Petitioner's business activities. 
However, the information he provides varies significantly from the information that the Petitioner 
submitted to USCIS regarding its business operations. The record lacks an explanation for this 
inconsistency. Thus , we must question whether the information provided by is correctly 
attributed to this particular Petitioner and position . does not demonstrate in-depth 
knowledge of the Petitioner 's operations or how the duties of the position would actually be 
performed in the context of its business enterprise. 
Further, opinion letter does not cite specific instances in which his past opinions have 
been accepted or recognized as authoritative on this particular issue. There is no indication that he 
has conducted any research or studies pertinent to the educational requirements for such positions (or 
parallel positions) in the Petitioner's industry for similar organizations , and no indication of 
recognition by professional organizations that he is an authority on those specific requirements. His 
curriculum vitae does not reflect that he has published any works on the academic/experience 
requirements for computer systems analysts (or related issues). 
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· Matter ofT- LLC 
Even assuming was an authority on degree requirements for computer systems analysts, 
his testimony does not substantiate his conclusions, such that we can conclude that the Petitioner has 
shouldered its burden of proof. 10 
First, in his initial submission, did not reference, cite, or discuss any studies, surveys, 
industry publications, authoritative publications, or other sources of empirical information which he 
may have consulted to complete his evaluation . On appeal, the Petitioner submits a revised opinion 
letter from that references the Handbook and O*NET. We addressed these resources 
earlier in the decision and will not repeat the analysis here other than to note that they do not support 
conclusions. also references various websites and provided the uniform 
resource locator (URL) for Internet pages that he says he reviewed. did not, however, 
submit printouts of the information. 
We are not required to conduct additional research on the Internet or to access websites as there may 
be a number of concerns with these sites (e.g., the links may have expired or the postings may have 
been removed; there may be malware, security concerns or viruses associated with these links; the 
links may be restricted). 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 of Skirball Cultural Ctr., 25 I&N 
Dec. 799, 806 (AAO 2012). Any suggestion that we must access and review websites, while being 
impractical and inefficient, would also be a shift in the evidentiary burden from the Petitioner to 
USCIS, which would be contrary to section 291 ofthe Act, 8 U.S.C. § 1361. 
Second, does not discuss the duties ofthe proffered position in any substantive detail. To 
the contrary, he simply listed the tasks in bullet-point fashion. There is no indication that he has any 
knowledge of the Petitioner's proffered position beyond this job description, e.g., visited the 
Petitioner's business, observed the Petitioner's employees, interviewed them about the nature of 
their work, or documented the knowledge that these workers apply on the job. The level of 
familiarity with the actual job duties as they would be performed in the context of the Petitioner's 
business has therefore not been substantiated. 
On appeal, the Petitioner submits a revised opinion letter from that expanded the job duties 
from nine duties (as noted in the initial letter) to 36 job duties. The expanded job duties include 
duties that are more senior and were never mentioned in the prior opinion letter, such as the 
Beneficiary will be "acting as a liaison between the functional business team and the technical 
team"; "designing, developing and maintaining solutions"; and, "providing subject matter expertise 
in applications and solution integration management processes." In revised opinion 
10 
The tenn "recognized authority" means a person or organization with expertise in a patticular field, special skills or 
knowledge in that field, and the expertise to render the type of opinion requested . 8 C.F.R . § 214.2(h)(4)(ii) . A 
recognized authority's opinion must state: (1) the writer's qualifications as an expert ; (2) the writer's experience giving 
such opinions, citing specific instances where past opinions have been accepted as authoritative and by whom ; (3) how 
the conclusions were reached ; and (4) the basis for the conclusions supported by copies or citations of any research 
material used. !d. 
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Matter ofT- LLC 
letter, he states that the Beneficiary's position is complex since the Beneficiary will "act as a direct 
liaison between the various teams working on these projects, whereas the typical Computer Systems 
Analyst communicates with management in this respect too, rather than serve as a direct liaison to 
the other teams." However, comes to this conclusion based on a job duty not mentioned in 
any of the prior job descriptions submitted by the Petitioner, and instead from a completely new job 
description the Petitioner submits on appeal. 
stated in his letter that "the duties described above are not · those of a lower level 
employee." 11 However, the record does not indicate whether was aware that, as' indicated 
by the Level I wage on the LCA, the Petitioner considered the proffered position to be an entry-level 
position. 12 It appears that would have found this information relevant for his o inion 
letter. Moreover, without this information, the Petitioner has not demonstrated that 
possessed the requisite information necessary to adequately assess the nature of the position and 
appropriately determine parallel positions based upon the job duties and responsibilities. 
For the reasons discussed, we find that the opinion letter lend little probative value to the matter 
here. Matter of Caron Int 'l, 19 I&N Dec. 791, 795 (Comm'r 1988) (The service is not required to 
accept or may give less weight to an advisory opinion when it is "not in accord with other 
information or is in any way questionable."). 
The Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(l). 
C. Second Criterion · 
The second criterion presents two alternative prongs: "The degree requirement is common to the 
industry in parallel positions among similar organizations or, in the alternative, an employer may 
show that its particular position is so complex or unique that it can be performed only by an 
individual with a degree[.]" 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) (emphasis added). The first prong 
contemplates common industry practice, while the alternative prong narrows its focus to the 
Petitioner's specific position. 
1. First Prong 
To satisfy this first prong of the second criterion, the Petitioner must establish that the "degree 
requirement" (i.e., a requirement of a bachelor ' s or higher degree in a specitic specialty, or its 
equivalent) is common to the industry in parallel positions among similar organizations. 
11 
If the proffered position is a senior position, the Petitioner should have designated the position at a higher wage on the 
LCA. Since the Petitioner designated the position as a level I wage, the LCA does not correspond with the information 
in letter. ' 
12 
As discussed previously , a Level l wage suggests that the position is a relatively low-level position compared to others 
within the occupational category . 
8 
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Matter~~ T- LLC 
In determining whether there is such a common degree requirement, factors we often consider 
include: whether the Handbook reports that the industry requires a degree; whether the industry ' s 
professional association has made a degree a minimum entry requirement; and whether letters or 
affidavits from firms or individuals in the industry attest that such firms "routinely employ and 
recruit only degreed individuals." See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1 151, 1 165 (D. Minn. 
1999)(quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
As discussed above, the Petitioner has not established that its proffered position is one for which the 
Handbook, or another authoritative source, reports an industry-wide requirement for at least a 
bachelor's degree in a specific specialty or its equivalent. We incorporate by reference our previous 
discussion on the matter. Also, there are no submissions from the industry's professional association 
indicating that it has made a degree a minimum entry requirement. Furthermore, the Petitioner did 
not submit any letters or affidavits from similar firms or individuals in the Petitioner's industry 
attesting that such firms routinely employ and recruit only degreed individuals. 
In support of this criterion, the Petitioner submitted several job announcements placed by other 
employers. However , the Petitioner's reliance on the job announcements is misplaced. First, we 
note that some of the job postings do not appear to involve organizations similar to the Petitioner. 
For example, the Petitioner is an information technology solutions provider , whereas the advertising 
organizations include: 
• - "one of the largest and most comprehensive 
integrated U.S. health care systems;" 
• - government transportation; 
• - higher education; 
• -
a staffing company that is hiring for a company 
in the financial industry; 
• -management consultants for government operations; 
• - the company indicated that "our 
client is one of the most respected grocery chains in the State of Florida;" 
• - healthcare industry; 
• ~ a clinical-stage biotechnology company; 
• -
a leading provider of recruiting and staffing solutions ; and, 
• -a staffing and recruiting company . 
When determining whether the Petitioner and the organization share the same general 
characteristics, such factors may include information regarding the nature or type of organization, 
and, when pertinent, the particular scope of operations, as well as the level of revenue and staffing 
(to list just a few elements that may be considered). It is not sufficient for the Petitioner to claim that 
an organization is similar and in the same industry without providing a legitimate basis for such an 
assertion. 
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Matter qf T- LLC 
Furthermore, some of the postings do not appear to be for parallel positions. That is, some of the 
postings do not appear to have similar job duties. Moreover, some of the advertisements appear to 
be more senior positions. For instance, the job postings include the following positions: 
• - requires a degree and over 6 years of financial services experience; 
• -requires a degree and over 4 years of professional experience; 
• - requires a degree and 7 years of directly related work 
experience. The advertisement also stated that an additional 4 years of experience 
in computer or architectures , systems analysis , or management of IT projects. can 
substitute for a degree; 
• - requires a degree and a minimum of 3 
years of experience ; 
• - requires a degree and several years of experience in multiple areas, and 3-
5 years of relevant systems analysis experience; 
• - requires a degree and 1 0 to 14 years of experience; and, 
• -requires a degree and 5 or more years of experience. 
As the documentation does not establish that the Petitioner has met this prong of the regulations , 
further analysis regarding ·the specific information 
contained in each of the job postings is not 
necessary. 13 That is, not every deficit of every job posting has been addressed. 
Without more, the Petitioner has not provided sufficient evidence to establish that a bachelor's 
degree in a specific specialty, or its equivalent, is common to the industry in parallel positions 
among similar organizations. The Petitioner has not satisfied the first alternative prong of 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(A)(2). 
The record does not satisfy the first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2) 
2. Second Prong 
We will next consider the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2) , which is 
satisfied if the Petitioner shows that its particular position is so complex or unique that it can be 
performed only by an individual with at least a bachelor's degree in a specific specialty, or its 
equivalent. 
In support of its assertion that the proffered pos1t10n qualifies as a specialty occupation, the 
Petitioner submitted a description of the proffered position and information regarding its business 
operations. While the Petitioner may believe that the position meets this prong of the regulations, 
D The Petitioner did not provide any independent evidence of how representative the job postings are of the particular 
advertising employers' recruiting history for the type of job advertised. As the advertisements are only solici tations for 
hire, they are not evidence of the actual hiring practices of these employers. Moreover, not all of the postings are for 
parallel positions . 
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Matter ofT- LLC 
we note, however, the record lacks evidence supporting the Petitioner's claim. For example, the 
Petitioner designated the proffered position as an entry-level position within the occupational 
category by selecting a Level I wage.14 This designation, when read in combination with the 
evidence presented and the Handbook's account of the requirements for this occupation. suggests 
that the particular position is not so complex or unique that the duties can only be performed an 
individual with bachelor's degree or higher in a specific specialty,,or its equivalent. 15 
The Petitioner claims that the Beneficiary is well-qualified for the position, and references his 
qualifications. However, the test to establish a position as a specialty occupation is not the education 
or experience of a proposed beneficiary, but whether the position itself requires at least a bachelor's 
degree in a specific specialty, or its equivalent. The Petitioner has not satisfied the second 
alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
D. Third Criterion 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. The 
Petitioner did not provide any information or evidence of other individuals employed in this 
position. Therefore, the Petitioner has not satisfied the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
E. Fourth Criterion 
The fourth criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A) requires a petitioner to establish that the nature 
of the specific duties is so specialized and complex that the knowledge required to perform them is 
usually associated with the attainment of a baccalaureate or higher degree in a specific specialty, or 
its equivalent. 
The job description submitted by the Petitioner does not establish that the duties are more 
specialized and complex than positions that are not usually associated with at least a bachelor's 
degree in a specific specialty, or its equivalent. We also incorporate our earlier discussion and 
analysis regarding the duties of the proffered position, and the designation of the proffered position 
14 
The Petitioner's designation of this position as a Level I, entry-level position undermines its claim that the position is 
particularly complex, specialized, or unique compared to other positions within the same occupation. Nevertheless, a 
Level I wage-designation does not preclude a proffered position from classification as a specialty occupation, just as a 
Level IV wage-designation does not definitively establish such a classification. In certain occupations (e.g., doctors or 
lawyers), a Level I, entry-level position would still require a minimum of a bachelor's degree in a specific specialty, or 
its equivalent, for entry. Similarly, however, a Level IV wage-designation would not reflect that an occupation qualifies 
as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor's degree 
in a specific specialty, or its equivalent. That is, a position's wage level designation may be a relevant factor but is not 
itself conclusive evidence that a proffered position meets the requirements of section 214(i)( I) of the Act. 
15 
The evidence of record does not establish that this position is significantly different from other positions within the 
occupational category such that it refutes the Handbook's information to the effect that some courses are advantageous to 
obtaining such a position, but not specifying that the degree must be in a specific specialty. 
II 
Matter ofT- LLC 
in the LCA as a Level I position (of the lowest of four assignable wage-levels) relative to others 
within the occupational category. 
Without further evidence, the Petitioner has not demonstrated that its proffered position is one with 
specialized and complex duties as such a position within this occupational category would likely be 
classified at a higher-level, requiring a substantially higher prevailing wage.16 
Accordingly, the Petitioner has not satisfied the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, 
therefore, has not demonstrated that the proffered position qualifies as a specialty occupation. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
As the appeal will be dismissed for the reasons discussed above, we will only briefly address the 
Director's additional basis for denying the petition. 
We reviewed the record of proceeding in its entirety. Specifically, we find that the Petitioner has not 
established that it meets the regulatory definition of a United States employer. See 8 C.F.R. 
§ 214.2(h)(4)(ii). More specifically, the Petitioner has not established that it will have "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." ld. 
The United States Supreme Court determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 
730 (1989)). The Supreme Court stated: 
"In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
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." · 
16 
For example, a Level IV (fully competent) position is designated by DOL for employees who "use advanced skills and 
diversified knowledge to solve unusual and complex problems" and requires a significantly higher wage. For additional 
information regarding wage levels as defined by DOL, see U.S. Dep't of Labor, Emp't & Training Admin., Prevailing 
Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009), available at 
http://www.foreignlaborcert.doleta.gov/pdf/NPWHC _Guidance_ Revised _II_ 2009.pdf. 
12 
Matter ofT- LLC 
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)). 
As such, while social security contributions, worker's compensation contributions, unemployment 
insurance contributions, federal and state income tax withholdings, and other benefits are still 
relevant factors in determining who will control the Beneficiary, other incidents of the relationship, 
e.g., who will oversee and direct the work of the Beneficiary, who will provide the instrumentalities 
and tools, where will the work be located, and who has the right or ability to affect the projects to 
which the Beneficiary is assigned, must also be assessed and weighed in order to make a 
determination as to who will be the Beneficiary's employer. 
The record of proceedings lacks sufficient documentation evidencing exactly what the Beneficiary 
would do for the period of time requested. For example, the Petitioner submitted a letter from the 
end-client indicating that it has a contract with the vendor, but it did not state that the Beneficiary is 
working on this project, or list specific duties to be performed by the Beneficiary. In addition, the 
contracts and the letter from the vendor indicate that the project will end on June 30, 2018. 
However, the Petitioner requested an employment period that will end in September 2019. 
Therefore, it is not clear if the Petitioner will have work for the Beneficiary for the entire period. 17 
The evidence, 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 Beneficiary 
is the Petitioner's employee and that the Petitioner exercises control over the Beneficiary, without 
sufficient, corroborating evidence fo support the claim, does not establish eligibility in this matter. 
Based on the tests outlined above, the Petitioner has not established that it will be a "United States 
employer" having an "employer-employee relationship" with the beneficiary as an H -1 B temporary 
"employee." 8 C.F .R. § 214.2(h)( 4 )(ii). 
V. CONCLUSION 
The Petitioner has not demonstrated eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter C?fT- LLC, ID# 671341 (AAO Aug. 10, 2017) 
17 
The agency made clear long ago that speculative employment is not permitted in the H-1 B program. See. e.g.. 63 Fed. 
Reg. 30419, 30419 - 30420 (June 4, 1998). 
13