dismissed H-1B Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Q-S-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 20,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a data analytics and software consulting firm, seeks to temporarily employ the 
Beneficiary as a "business systems analyst" under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The H-IB program allows a U.S. employer to temporarily employ a qualified 
foreign wqrker in a position that requires both (a) the theoretical and practical application of a body 
of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in the 
specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not demonstrate that (1) it will have the requisite employer-employee relationship with 
the Beneficiary, and (2) the proffered position qualifies as a specialty occupation. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
finding that the Petitioner will not have a valid employer-employee relationship with the Beneficiary 
and that the evidence demonstrates that the proffered position is a specialty occupation. 
Upon de novo review, we will dismiss the appeal. 
I. SPECIALTY OCCUPATION 
We will first address the Director's finding that the evidence of record is insufficient to establish that 
the proffered position qualifies as a specialty occupation. 
A. 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 arid practical application of a body of highly specialized 
knowledge, and 
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Matter of Q-S-S- Inc. 
(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.P.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: 
(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.P.R. § 214.2(h)(4)(iii)(A). U.S. Citizenship and Immigration Services (USCIS) has consistently 
interpreted the term "degree" in the criteria at 8 C.P.R. § 214.2(h)( 4)(iii)(A) to mean not just any 
baccalaureate or higher degree, but one in a specific specialty that is directly related to the proposed 
position. See Royal Siam Corp. v. Chertoff, 484 P.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 P.3d 384, 387 (5th Cir. 2000). 
B. Proffered Position 
The Petitioner claims in the Labor Condition Application that the proffered position corresponds to 
Standard Occupational Classification (SOC) code and title 15-1121, Computer Systems Analyst, 
from the Occupational Information Network (O*NET). 
In its support letter, the Petitioner provided the following description of the duties of the proffered 
position (verbatim): 
• Analyze and evaluate clients existing software and database management systems 
and infm:mation technology needs.( approximately 10% of daily work time); 
• Design and Develop a high performing platform team 
responsible for configuration, customizations, release planning and deployment 
using EDI, X12, Sterling Integrator, Websphere Transformation extender, XML, 
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Matter of Q-S-S- Inc. 
XSLT, Hibernate, Javascript, SQL, PLISQL, ODBC, JDBC, Web Services, and 
Oracle Applications. 
• Work on client application for EDI systems that use data integration software. 
• Identify and configure the overall supplier and consignee on boarding process, 
drug safety and CRO customizations development for production and non­
production global deployments of product based applications and operational 
activities. 
• Identification of application interdependencies, configuration of 
staging/performance environments, risk mitigation, creation of process artifacts 
and documentation. 
• Analyze trading software code; Initiating changes and improvements to real time 
software and systems for market place analysis. 
• Primary liaison to various Client teams like Client Launch Team, Products. 
• Ensure availability and scalability of deployment and QA environments for 
various projects. 
• Management escalation point for customization requirements, environment and 
related issues occurring in all environments (production, QA, Development) 
• Advocate new tools and processes to continuously improve Trading partner on 
boarding activities. 
• Designing software to meet clients' needs (Approximately 15% ofwork time) 
• Develop software programs, unit test, and errors resolution (approximately 30% 
of work time) 
• Generating Daily/Weekly/Monthly reports for management (approximately .10% 
of work time) 
• Creating and maintaining relational database management system in a client/ 
server environment using Oracle and other database design (approximately 10% 
of work time) 
• Validating, Calculating, coding, testing and updating data (approximately 10% of 
· work time). 
• Design Web application and develop use case diagrams, class and sequence 
diagrams for the application. 
• Evaluate user request for new or modified computer systems for cost 
effectiveness and clarify program objectives using optimization analysis 
(Operational research) (approximately 15% ofwork time) 
• Daily error and Abort Management 
• Create test data in the tables and write SQL queries and manipulate tables to 
execute test cases. 
• Write and modify required SQL validation scripts to validate the outputs. 
• Log Issues in silk central issue manager and assign severity to them and link 
Issues to test cases and test cases to requirements. 
• Prepare Test Summary reports end of each iteration and communicate the status 
of testing within the project team and management. 
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Matter of Q-S-S- Inc. 
• Design of Test scripts based on the System requirements from Business Analysts 
and the development teams. 
With respect with the educational requirement of the proffered position, the Petitioner stated, "This 
position requires minimum of US Bachelor's degree or Equivalent Degree in Science or Engineering 
.... " Elsewhere in the same letter, the Petitioner stated that the position requires, "a minimum of a 
Bachelor's degree in Computer Science or Computer Engineering or Computer application, or 
Engineering related discipline with at least 2 years of related experience." 
A document headed, "Itinerary of Services" provides the following duty description (verbatim): 
• Analyze and develop technical specification and software code for 
and Data Integration software applications using 
EDI, X12, Sterling Integrator, BPML, Database Interface Designer, Resource 
Registry, Type Designer, Type Tree Maker, Launcher Administration, Launcher 
Monitor, Management Console, Command Server, Snapshot 
Viewer, !KEYMAN, 
Sybase ECmap, Open SSL, Sterling Integrator, IBM Gentran Integration Suite, 
Sterling File Gateway, XML, XSLT, JavaScript, SQL, PLISQL, ODBC, JDBC 
and Web Services 
• Participate in the configuration, mapping setup, optimization, testing process, 
through test review and analysis, test witnessing, and certification of data 
warehousing and integration applications; · 
• Design, Configure, Test and Implement Logistics software applications; 
• Validate data retrieval, and business reporting software code; 
• Perform data transformations, data cleansing, data loading and application Data 
reconciliation procedures for various client projects using Oracle, Microsoft SQL 
Server, T-SQL, PLISQL, Oracle, Java, JAX-WS, Uriix, FTP, SFTP, HTTP, AS2, 
VAN Work with detailed specifications, designs, code, test plans, test cases and 
test scripts; 
• Review, test, implement, and analyze Data Transformation & Integration test 
plans. 
That document further states (verbatim): 
[The Beneficiary] will work at our client's location 
and will continue to work on the same project, performing the same 
job duties, at the same location for a period of three years as stated on form 1-129 for 
a period ending in 8/30/2018. 
[The Beneficiary] reports directly to as his immediate supervisor. 
Another document with the title, "[The Petitioner's] Right of Control Over [the Beneficiary]," which 
was signed by both the Beneficiary and who is identified as the Petitioner's Manager 
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(b)(6)
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·Matter of Q-S-S- Inc. 
-Human Resources, states, "[The Petitioner's] supervisor, to whom [the Beneficiary] will report, is 
named " 
The Petitioner provided a Master Services Agreement (MSA), executed by the Petitioner and 
on November 14, 2014, in which they agree that the Petitioner will perform 
services described in Appendix A. That document further states: client] shall prepare the 
entire direction, scope, control and interpretation of any systems work to be performed by [the 
Petitioner]. client] shall provide the required facilities and services necessary for the 
successful completion of the project." 
Appendix A is a purchase order in which the Petitioner agrees to provide the Beneficiary to for 
a period of "6 Months +" beginning on November 24, 2014. That document was signed by the 
Petitioner and on November 14, 2014. It states that the Beneficiary would work at 
Illinois location as an systems analyst. 
A flow chart headed, "Petitioner/Client Chart" indicates that the Petitioner will provide the 
Beneficiary to which will provide him directly to 
In response to the Director's request for evidence (RFE), the Petitioner provided additional evidence, 
including vacancy announcements placed by other companies for various systems analyst positions. 
The Petitioner submitted a letter from 
That letter states that 
organizational chart shows that 
its administrator. 
who identifies himself as "Business Head" at 
will supervise the Beneficiary's work. The submitted 
is the Petitioner's vice president and IS 
The Petitioner also submitted a letter from who identifies himself as "Mgr, B2B 
Integration" for That letter states that the Beneficiary is currently working at 
Illinois location and will continue to work there "for what we anticipate to be an 
extended service engagement." It states that the Beneficiary was provided to by 
"through With respect to the educational requirement for the position, the letter 
states that required to "staff the project with a professional who holds at least 
a U.S. four-year bachelor's degree, or its educational/experiential equivalent, in a relevant specialty 
occupation field." 
The Director denied the visa petition on August 3, 2015. On appeal, the Petitioner provided, inter 
alia, a brief, asking for a decision on the record, which it states amply supports approval of the visa 
petition. 
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Matter of Q-S-S-Inc. 
C. Analysis 
A baccalaureate or higher degree in a specific specialty, or its equivalent, is 
normally the minimum requirement for entry into the particular position 
Turning to the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A), we will first discuss the record of 
proceedings in relation 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. 
As was noted above, the Petitioner claims in the LCA that the proffered position corresponds to SOC 
code and title 15-1121, Computer Systems Analysts, from O*NET. The LCA further states that the 
proffered position is a wage Level I, entry-level, position. 
We recognize the Handbook, cited by the .Petitioner, as an authoritative source on the duties and 
educational requirements of the wide variety of occupations that it addresses. 1 The Handbook states 
the following about the educational requirements of Computer Systems Analyst positions: 
Most computer systems analysts have a bachelor's degree in a computer-related field. 
Because these analysts also are heavily involved in the business side of a company, it 
may be helpful to take business courses or major in management information 
systems. 
Some employers prefer applicants who have a master's degree in business 
administration (MBA) with a concentration in information systems. For more 
technically complex jobs, a master's degree in computer science may be more 
appropriate. 
Although many computer systems analysts have technical degrees, such a degree is 
not always a requirement. M~ny analysts have liberal arts degrees and have gained 
programming or technical expertise elsewhere. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Computer Systems Analysts," http://www.bls.gov/ooh/computer-and-information-technology/ 
computer-systems-analysts.htm#tab-4 (last visited Apr. 15, 20 16). 
The Handbook makes clear that computer systems analyst positions do not, as a category, require a 
minimum of a bachelor's degree or the equivalent, as it indicates that many systems analysts have a 
liberal arts degree and programming knowledge, rather than a degree in a specific specialty directly 
related to systems analysis. 
1 The Handbook, which is available in printed form, may also be accessed on the Internet, at http://www.bls.gov/oco/. 
Our references to the Handbook are to the 2016-2017 edition available online. 
6 
Matter of Q-S-S- Inc. 
When reviewing the Handbook, it also must be noted that the Petitioner designated the proffered 
position as a Level I (entry level) position on the LCA. The wage levels are defined in DOL's 
"Prevailing Wage Determination Policy Guidance." A Level I wage rate is described as follows: 
Level I (entry) wage rates are assigned to job offers for beginning level employees 
who have only a basic understanding of the occupation. These employees perform 
routine tasks that require limited, if any, exercise of judgment. The tasks provide 
experience and familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and developmental 
purposes. These employees work under close supervision and receive specific 
instructions on required tasks and results expected. Their work is closely monitored 
and reviewed for accuracy. Statements that the job offer is for a research fellow, a 
worker in training, or an internship are indicators that a Level I wage should be 
considered. 
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 _11_ 2009 .pdf. 
Thus, in designating the proffered position at a Level I wage, the Petitioner has indicated that the 
proffered position is a comparatively low, entry-level position relative to others within the 
occupation. In accordance with the relevant DOL explanatory information on wage levels, this wage 
rate indicates that the Beneficiary is only required to have a basic understanding of the occupation 
and carries expectations that the Beneficiary perform routine tasks that require limited, if any, 
exercise of judgment; that he would be closely supervised; that his work would be closely monitored 
and reviewed for accuracy; and that he would receive specific instructions on required tasks and 
expected results. As noted above, according to DOL guidance, a statement that the job offer is for a 
research fellow, worker in training or an intemshi'p is indicative that a Level I wage should be 
considered. 
When the Handbook does not support the proposition that a proffered position is one that meets the 
statutory and regulatory provisions of a specialty occupation, it is incumbent upon the Petitioner to 
provide persuasive evidence that the proffered position more likely than not satisfies this or one of 
the other three criteria, notwithstanding the absence of the Handbook's support on the issue. In such 
cases, it is the Petitioner's responsibility to provide probative evidence (e.g., documentation from 
other objective, authoritative sources) that supports a finding that the particular position in question 
qualifies as a specialty occupation. Whenever more than one authoritative source exists, an 
adjudicator will consider and weigh all of the evidence presented to determine whether the particular 
position qualifies as a specialty occupation. 
However, the record of proceedings does not contain sufficient persuasive documentary evidence 
from any other relevant authoritative source establishing that the proffered position's inclusion 
Matter of Q-S-S- Inc. 
within the occupational category of computer systems analyst establishes the prOffered position as, 
in the words of this criterion, a "particular position" for which "[a] baccalaureate or higher degree or 
its equivalent is normally the minimum requirement for entry." 
Further, we find that, to the extent that they are described in the record of proceedings, the numerous 
duties that the Petitioner ascribes to the proffered position indicate a need for a range of technical 
knowledge in the computer/IT field, but do not establish any particular level of formal, 
postsecondary education leading to a bachelor's or higher degree in a specific specialty as minimally 
necessary to attain such knowledge. 
For the reasons explained above, the Petitioner has not satisfied the criterion at 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(l). 
The requirement of a baccalaureate or higher degree in a specific specialty, 
or its equivalent, is common to the industry in parallel 
positions among similar organizations 
Next, we will review the record regarding the first of the two alternative prongs of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2). This prong alternatively calls for a petitioner to establish thata requirement 
of a bachelor's or higher degree in a specific specialty, or its equivalent, is common for positions 
that are: (1) in the petitioner's industry, (2) parallel to the proffered position, and also (3) located in 
organizations that are similar to the petitioner. 
In determining whether there is such a common degree requirement, factors often considered by 
USCIS 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 1151, 1165 (D. Minn. 
1999) (quoting Hird/Blaker Corp. v. Sava, 712 F. Supp. 1095, 1102 (S.D.N.Y. 1989)). 
Here and as already discussed, the Petitioner has not established that its proffered position is one for 
which the Handbook (or other independent, . authoritative source) reports an industry-wide 
requirement for at least a bachelor's degree in a specific specialty or its equivalent. Thus, we 
incorporate by reference the previous discussion on the matter. 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." 
As was noted above, the Petitioner did provide vacancy announcements placed by other companies 
to satisfy this criterion. 
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Matter of Q-S-S- Inc. 
The Internet vacancy announcements submitted by the Petitioner do not establish that the degree 
requirement is common to the industry in parallel positions among similar organizations. First, we 
note that the Petitioner did not provide any independent evidence of how representative these job 
advertisements are of the particular advertising employers' recruiting history for the type of jobs 
advertised. Further, as they are only solicitations for hire, they are not evidence of the employers' 
actual hiring practices. 
Second, upon review of the advertisements, they do not provide sufficient information about the 
advertising organizations to establish that they are similar to the Petitioner. Without such evidence, 
these advertisements are generally outside the scope of consideration for this criterion, which 
encompasses only organizations that are similar to the Petitioner. 
Moreover, some of the vacancy announcements provided are for positions entitled, Senior Business 
Systems Analyst and IT Sr. Business Systems Analyst. The designation of a position as "Senior" 
suggests that it is not an entry-level position for an employee with only basic understanding of the 
occupation, to perform tasks that require limited, if any, exercise of judgment. As the Petitioner has 
designated the proffered position as wage Level I, those positions do not appear to be positions 
parallel to the proffered position. 
Finally, even if all of the vacancy announcements were for parallel positions with organizations 
similar to the Petitioner and in the Petitioner's industry and required a minimum of a bachelor's 
degree in a specific specialty or its equivalent, the Petitioner has not demonstrated what statistically 
valid inferences, if any, can be drawn from a few vacancy announcements with regard to the 
common educational requirements for entry into parallel positions in similar organizations. 2 
Thus, the evidence of record does not establish that a requirement of a bachelor's or higher degree in 
a specific specialty, or its equivalent, is common to parallel positions with organizations that are in 
the Petitioner's industry and otherwise similar to the Petitioner. The Petitioner. has not, therefore, 
satisfied the criterion ofthe first alternative prong of8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The particular position is so complex or unique that it can be performed only by 
an individual with a baccalaureate or higher degree in a 
specific specialty, or its equivalent 
The evidence of record also does not satisfy the second alternative prong of 8 C.F.R. 
§ 214.2(h)(4)(iii)(A)(2), which provides that "an employer may show that its particular position is so 
2 USCIS "must examine each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably true." Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). As just discussed, the Petitioner has not established the relevance of the 
job advertisements submitted to the position proffered in this case. Even if their relevance had been established, the 
Petitioner still would not have demonstrated what inferences, if any, can be drawn from these few job postings with 
regard to determining the common educational requirements for entry into parallel positions in similar organizations in 
the same industry. See generally Earl Babbie, The Practice ofSocial Research 186-228 (1995). 
9 
Matter of Q-S-S- Inc. 
complex or unique that it can be performed only by an individual with a degree." A review of the 
record of proceedings indicates that the Petitioner has not credibly demonstrated that the duties the 
Beneficiary will be responsible for or perform on a day-to-day basis constitute a position so complex 
or unique that it can only be performed by a person with at least a bachelor's degree in a specific 
specialty, or its equivalent. Even when considering the Petitioner's general descriptions of the 
proffered position's duties, the evidence of record does not establish why a few related courses or 
industry experience alone is insufficient preparation for the proffered position. While a few related 
courses may be beneficial, or even required, in performing certain duties of the position, the 
Petitioner has not demonstrated how an established curriculum of such courses leading to a 
baccalaureate or higher degree in a specific specialty, or its equivalent, is required to perform the 
duties of the proffered position. The description of the duties does not specifically identify any tasks 
that are so complex or unique that only a specifically degreed individual could perform them. The 
record lacks sufficiently detailed information to distinguish the proffered position as more complex 
or unique from other positions that can be performed by persons without at least a bachelor's degree 
in a specific specialty, or its equivalent. 
Therefore, the evidence of record does not establish that this position is significantly different from 
other positions in the occupation such that it refutes the Handbook's information to the effect that 
there is a spectrum of degrees acceptable for such positions, including degrees not in a specific 
specialty. In other words, the record lacks suffiCiently detailed information to distinguish the 
proffered position as unique from or more complex than positions that can be performed by persons 
without at least a bachelor's degree in a specific specialty, or its equivalent. As the Petitioner did not 
demonstrate how the proffered position is so complex or unique relative to other positions within the 
same occupational category that do not require at least a baccalaureate degree in a specific specialty 
or its equivalent for entry into the occupation in the United States, it cannot be concluded that the 
Petitioner has satisfied the second alternative prong of 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). 
The employer normally requires a baccalaureate or higher degree in a 
specific specialty, or its equivalent, for the position 
The third criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A) entails an employer demonstrating that it 
normally requires a bachelor's degree in a specific specialty, or its equivalent, for the position. To 
this end, we usually review a petitioner's past recruiting and hiring practices, as well as information 
regarding employees who previously held the position. 
The Petitioner's organizational chart shows that the Petitioner presently employs several systems 
analysts. However, the record does not reveal what their educational qualifications are. The 
Petitioner has not submitted evidence under this criterion. 
While a petitioner may believe or otherwise assert that a proffered position requires a specific 
degree, that opinion alone without corroborating evidence cannot establish the position as a specialty 
occupation. Were USCIS limited solely to reviewing a petitioner's claimed self-imposed 
requirements, then any individual with a bachelor's degree could be brought to the United States to 
10 
Matter of Q-S-S- Inc. 
perform any occupation as long as the petitioner artificially created a token degree requirement, 
whereby all individuals employed in a particular position possessed a baccalaureate or higher degree 
in the specific specialty or its equivalent. See Defensor v. Meissner, 201 F.3d at 388. In other 
words, if a petitioner's stated degree requirement is only designed to artificially meet the standards 
for an H-IB visa and/or to underemploy an individual in a position for which he or she is 
overqualified and if the proffered position does not in fact require such a specialty degree or its 
equivalent to perform its duties, the occupation would not meet the statutory or regulatory definition 
of a specialty occupation. See § 214(i)(l) of the Act; 8 C.F.R. § 214.2(h)(4)(ii) (defining the term 
"specialty occupation"). 
The evidence submitted does not demonstrate that the Petitioner normally requires a minimum of a 
bachelor's degree in a specific specialty or its equivalent for the proffered position, and does not, 
therefore, satisfy the criterion of 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). 
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 in a specific specialty, or its equivalent 
Finally, we will address the alternative criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), which is 
satisfied if the evidence of record establishes that the nature of the specific duties is so specialized 
and complex that knowledge required to perform them is usually associated with the attainment of a 
baccalaureate or higher degree in a specific specialty or its equivalent. In the instant case, relative 
specialization and complexity have not been sufficiently developed by the Petitioner as an aspect of 
the proffered position. We again refer to our earlier comments and findings with regard to the 
implication of the Petitioner's designation of the proffered position in the LCA as a Level I (the 
lowest of four assignable levels) wage. That is, the Level I wage designation is indicative of a low, 
entry-level position relative to others within the occupational category, and hence one not likely 
distinguishable by relatively specialized and complex duties.3 Upon review of the totality of the 
record, the Petitioner has not established that the nature of the specific duties is so specialized and 
complex that the knowledge required to perform the duties is usually associated with the attainment 
of a baccalaureate or higher degree in a specific specialty, or its equivalent. 
For the reasons discussed above, the evidence of record does not satisfy the fourth criterion at 
8 C.F.R. § 214.2(h)(4)(iii)(A). 
3 The issue here is that 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, it is important to note that a Level I wage-designation does not preclude a proffered position 
from classification as a specialty occupation. In certain occupations (doctors or lawyers, for example), an 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 consideration but is not a substitute for 
a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. 
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Matter of Q-S-S- Inc. 
The Petitioner has not satisfied any of the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) and, therefore, it 
cannot be found that the proffered position qualifies as a specialty occupation. The appeal will be 
dismissed and the petition denied for this reason. 
II. EMPLOYER-EMPLOYEE RELATIONSHIP 
We will briefly address the issue of whether or not the Petitioner qualifies as an H-IB employer. 
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." 
!d.; 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. 
In the provided itinerary, the Petitioner stated that who is identified in the 
organizational chart as the Petitioner's vice president, would supervise the Beneficiary. In another 
document, submitted contemporaneously, the Petitioner stated that the Beneficiary would be 
supervised by , who is identified on that document as the Petitioner's Manager -
Human Resources, and on the organizational chart as "Administration." The organizational chart 
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(b)(6)
Matter of Q-S-S- Inc. 
indicates that 
Beneficiary. 
identified only as "Software Engineering," supervises the 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). It is incumbent upon the Petitioner to resolve any 
inconsistencies in the 
record with independent objective evidence, and attempts to explain or 
reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in 
fact, lies, will not suffice. !d. At 591-592. 
In the Itinerary of Services, the Petitioner stated, "[The Beneficiary] will work at our client's 
Illinois location]," thus representing that it was providing the Beneficiary directly to its 
client, In a chart and in 
its support letter, submitted contemporaneously with the itinerary, 
the Petitioner indicated that the Petitioner would provide the Beneficiary to 
an intervening contractor. · The July 17, 2015, letter from however, states that 
would provide the Beneficiary to 
Further, the MSA states that client] shall prepare the entire direction, scope, control and 
interpretation of any systems work to be performed by [the Petitioner]," and client] shall 
provide the required facilities and services necessary for the successful completion of the project." 
Such statements indicate that will oversee and direct the work of the Beneficiary. 
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." Again, while social security contributions, worker's 
compensation contributions, unemployment insurance contributions, federal and state income tax 
withholdings, and other benefits are still relevant factors in determining who will control a 
beneficiary, other incidents of the relationship, e.g., who will oversee and direct the work of the 
beneficiary, who will provide the instrumentalities arid 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. Merely claiming in its letters that the Petitioner exercises complete control over the 
Beneficiary, which assertion is rendered unlikely by other evidence, does not establish eligibility in 
this matter. Without full disclosure of all of the relevant factors and the inconsistencies present in 
the evidence of record, we are unable to find that the requisite employer-employee relationship will 
exist between the Petitioner and the Beneficiary. 
The evidence, therefore, is insuffident to establish that the Petitioner qualifies as a United States 
employer, as defined by 8 C.F.R. § 214.2(h)(4)(ii). The appeal will be dismissed and the petition 
denied for this additional reason. 
13 
Matter of Q-S-S- Inc. 
III. CONCLUSION 
In visa petitionproceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: · The appeal is dismissed. 
Cite as Matter ofQ-S-S- Inc., ID# 16181 (AAO Apr. 20, 2016) 
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