dismissed H-1B Case: Computer Science

(b)(6)
MATTER OF T-C-S- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 14,2016 
APPEAL OF CALIFORNIA 
SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an "Information Technology Consulting Firm," seeks to employ the Beneficiary as a 
"Computer Programmer" under the H-1B noniiillliigrant classification for specialty occupations. See 
Immigration and Nationality Act (the Act)§ l01(a)(l5)(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 worker in a 
position that requires both (a) the theoretical and practical application of a body of highly specialized 
knowledge and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied . the petition. The Director concluded that the 
evidence of record did not establish that the Petitioner meets the definition of a United States 
employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the DireCtor did not fully consider the record in its entirety. 
Upon de nov'? review, we will dismiss the appeal. 
I. PROFFERED POSITION 
On the Form I-129, the Petitioner stated that the Beneficiary would work off-site at "[End-client]: 
_ (ONLY WORK LOCATION)." The LCA is 
certified only for that location. 
In its letter of support, the Petitioner stated that throughout the period of requested employment the 
Beneficiary would work at the end-client worksite located in Ohio. It listed the proffered duties as 
follows: 
• Applying knowledge of programming techniques and computer systems to plan, 
develop, test and document computer programs. 
• Conducting trial runs of programs and testing of software applications to be sure they 
will produce the desired information and that the instructions are correct. 
(b)(6)
Matter of T-C-S- Ltd. 
• Evaluating user requests for new . or modified programs, and compatibility with · 
current systems and computer capabilities. 
• Consolidating class and sequence diagrams and preparing high- and low-level design 
documents. 
• Using structured analysis and design to formulate plans that outline the steps required 
to develop programs. 
• Writing, analyzing, reviewing . and rewriting programs, using workflow charts and 
diagrams, and applying knowledge of computer capabilities, subject matter, and 
symbolic logic. 
• Entering program codes into computer systems and testing programs. 
• Performing revision, repair, or expansion of existing programs to. increase operating 
efficiency or adapt to new requirements. 
• Recreating the steps taken by users to locate the source of and correct problems. 
• Compiling and writing documentation of program development and subsequent 
revisions, inserting comments in the coded instructions so others can understand the 
program. 
The Petitioner submitted a letter from the end-client stating: 
Pursuant to the current agreement in force, [the Petitioner] has assigned [the 
Beneficiary] to our facility in the 
capacity of Computer Programmer, with responsibility for planning, developing, 
testing and documenting computer programs. Because of the complexity of our IT 
systems, our company requires computer consulting professionals to possess at least a 
bachelor's degree in computer science, engineering, or a closely related discipline, or 
the equivalent. 
II. UNITED STATES EMPLOYER 
We will first discuss whether the Petitioner has established that it meets the regulatory definition of a 
United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). 
A. Legal Framework 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant in pertinent part as an alien: 
subject to section 2120)(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) .... 
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Matter of T-C-S- Ltd. 
The term "United States employer" is defined in the Code of Federal Regulations at 8 C.F.R. 
§ 214.2(h)(4)(ii) as follows: 
United States employer means a person, firm, corporation, contractor, or other 
association, or organization in the United States which: 
(1) Engages a person to work within the United States; 
(2) Has an employer-employee relationship with respect to employees 
under this part, as. indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; 
and 
(3) Has an Internal Revenue Service Tax identification number. 
(Emphasis added); see Temporary Alien Workers Seeking Classification Under the Immigration and 
Nationality Act 56 Fed. Reg. 61,111, 61,121 (Dec. 2, 1991) (to be codified at 8 C.F.R. pt. 214). 
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 101(a)(15)(H)(i)(b) of the Act indicates that an individual coming to the 
United States to perform. services in a specialty occupation will have an "intending employer" who will 
file a Labor Condition Application with the Secretary of Labor pursuant to section 212(n)(l) of the Act, 
8 U.S.C. § 1182(n)(l). 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). Further, the regulations indicate that "United States employers" 
must file a Form I-129, Petition for a Nonimmigrant Worker, in order to classify individuals as H-lB 
temporary "employees." 8 C.F.R. § 214.2(h)(1), (2)(i)(A). Finally, the definition of "United States 
employer" indicates in its second prong that the Petitioner must have an "employer-employee 
relationship" with the "employees under this part," i.e., the H-1B beneficiary, and that this relationship 
be evidenced by the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of 
any such employee." 8 C.F.R. § 214.2(h)(4)(ii) (defining the term "United States employer"). 
Neither the former Immigration and Naturalization Service (INS) nor U.S. Citizenship and Immigration 
Services (USCIS) defined the terms "employee" or "employer-employee relationship" by regulation for 
purposes of the H -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-lB visa classification, these terms are undefined. 
The United States Supreme Court has determined that where federal law fails to clearly define the term 
"employee," courts should conclude that the term was "intended to describe the conventional master­
servant relationship as understood by common-law agency doCtrine." Nationwide 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: 
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Matter ofT-C-S- Ltd. 
"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 mariner 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." 
Id; see also Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting 
Darden, 503 U.S. at 323). As the common-law test contains "no shorthand formula or magic phrase 
that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and 
weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. 
of Am., 390 U.S. 254,258 (1968)). 
In this matter, the Act does not exhibit a legislative intent to extend the definition of "employer" in 
section 101(a)(15)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or 
"employee" in section 212(n)(2)(C)(vii) of the Act beyond the traditional common law definitions. See 
generally 136 Cong. Rec. S17106 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H12358 (daily ed. Oct. 27, 
1990). On the contrary, in the context ofthe H-1B visa classification, the regulations define the term 
"United States employer" to be even more restrictive than the common law agency definition.1 
Specifically, the regulatory definition of "United States employer" requires H-1B 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-1B "employee." 8 C.F.R. § 214.2(h)(4)(ii). Accordingly, 
the term "United States employer" not only requires H-1B 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 
1 While the Darden court <;onsidered only the definition of "employee" under the Employee Retirement Income Security 
Act of 1974 (ERISA), 29 U.S.C. § 1002(6), and did not address the definition of "employer," courts have generally 
refused to extend the common law agency definition to ERISA's use of employer because "the definition of 'employer' 
in ERISA, unlike the definition of 'employee,' clearly indicates legislative intent to extend the definition beyond the 
traditional common law definition." See, e.g., Bowers v. Andrew Weir Shipping, Ltd., 810 F. Supp. 522 (S.D.N.Y. 
1992). 
However, in this matter, the Act does not exhibit a legislative intent to extend the definition o("employer" in section 
101(a)(l5)(H)(i)(b) of the Act, "employment" in section 212(n)(l)(A)(i) of the Act, or "employee" in section 
212(n)(2)(C)(vii) of the Act beyond the. traditional common law definitions. Instead, in the context of the H-IB visa 
classification, the term "United States employer" was defined in the regulations to be even more restrictive than the 
common law agency definition. A federal agency's interpretation of a statute whose administration is entrusted to it is to 
be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Res. Def Council, 
Inc., 467'U.S. 837, 844-45 (1984). 
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Matter of T-C-S- Ltd 
States. The lack of an express expansion of the definition regarding the terms "employee" or 
"employer-employee relationship" combined with the agency's otherwise generally circular definition 
of United States employer in 8 C.F.R. § 214.2(h)(4)(ii) indicates that the regulations do not intend to 
extend the defmition beyond "the traditional common law definition" or, more importantly, that 
construing these terms in this manner would thwart congressional design or lead to absurd results. Cf 
Darden, 503 'U.S. at 318-19.2 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to the terms "employee" and "employer-employee relationship" as used 
in section 101(a)(15)(H)(i)(b) of the Act, section 212(n) ofthe Act, and 8 C.F.R. § 214.2(h).3 
Therefore, in considering whether or not one will be an "employee" in an "employer-employee 
relationship" with a "United States employer" for purposes of H-1B nonimmigrant petitions, USCIS 
must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450; see also 8 C.F.R. 
§ 214.2(h)(4)(ii) (defining a "United States employer" as one who "has an employer-employee 
relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee .... " (emphasis added)). 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-:III(A)(1) (adopting a materially identical test and indicating that 
said test was based on the Darden decision); Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir. 2000) 
(determining that hospitals, as the recipients ofbeneficiaries' services, are the "true employers" ofH-1B 
nurses under 8 C.F.R. § 214.2(h), even though a medical contract service agency is the petitioner, 
because the hospitals ultimately hire, pay, fire, supervise, or otherwise control the work of the 
beneficiaries). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
2 To the extent the regulations are ambiguous with regard to the terms "employee" or "employer-employee relationship," 
the agency's interpretation of these terms should be found to be controlling unless "'plainly erroneous or inconsistent 
with the regulation."' Auer v. Robbins, 519 U.S. 452, 461 (1997) (citing Robertson v. Methow Valley Citizens Council, 
490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). 
3 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 of the Act, 8 U.S.C. § 1324a (referring to the employment of 
unauthorized individuals). 
5 
Matter ofT-C-S- Ltd 
relevant to control may affect the determination of whether an employer-employee relationship exists. 
Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder must 
weigh and compare a combination of the factors in analyzing the facts of each individual case. The 
determination must be based on all of the circumstances in the relationship between the parties, 
regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 
See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(1). 
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 
323-24. 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 
Upon review of the record, we find insufficient evidence to establish that the Petitioner qualifies as a 
United States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii). There is insufficient 
evidence in the record to establish that the Petitioner has work available for the Beneficiary within 
the United States, and ·consequently, will have and maintain an employer-employee relationship with 
the Beneficiary. 
Here, the Petitioner asserts that the Beneficiary will be assigned to work offsite at the end-client's 
premises in Ohio. However, we find insufficient evidence in the record to corroborate the 
Petitioner's assertions regarding this claimed assignment. The Petitioner. has not submitted a valid 
Statement of Work or other similar contractual agreement between the Petitioner and the end-client 
establishing that the Beneficiary has, indeed, been assigned to work for· the end-client. While the 
Petitioner submitted several Statements of Work assigning the Beneficiary to work for the end-client 
in 2012 through 2014, these assignments were specifically and only for "offshore" work to be 
completed in India. None of these Statements of Work pertain to work to be performed in the 
United States. 
In the Petitioner's response to the Director's request for evidence (RFE), the Petitioner explained 
that these Statements of Work "govern the project to which [the Beneficiary] is assigned ... [and 
demonstrate that] specialty occupation work will exist for the beneficiary for the employment period 
requested in the instant petition." However, since these Statements of Work are only for work to be 
performed in India, we cannot find that they would govern the Beneficiary's work performed in the 
United States. The Statements of Work also do not demonstrate that work would be available for the 
Beneficiary in the United States, as claimed by the Petitioner. Moreover, we observe that these 
6 
Matter of T-C-S- Ltd 
Statements of Work (as well as the Amendment #5 to Information Technology Outsourcing Services 
Agreement) identify the contracting parties as the end-client and another company whose exact 
relationship to the Petitioner has not been explained and documented. "[I]t is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence." Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Id. at 
591-92. 
The evidence of record also contains a letter from the end-client which states that, "[p ]ursuant to the 
current agreement in force, [the Petitioner] has assigned [the Beneficiary] to [the end-client's Ohio] 
facility in the capacity of Computer Programmer." However, there is no further explanation or 
evidence of what "current agreement in force" this letter references. Again, the only Statements of 
Work contained in the record of proceedings are between the end-client and the other company for 
the Beneficiary's prior work performed in India; the record does not contain any current agreements 
between the Petitioner and the end-client specifically assigning the Beneficiary to work in the United 
States. Without more, the end-client's letter is insufficient to establish that the Petitioner has in fact 
assigned the Beneficiary to work for the end-client in Ohio under the terms and conditions specified 
in the Petition. 
As detailed above,· we find the evidence of record insufficient to establish that the Petitioner has 
work available for the Beneficiary within the United States. The record of proceedings lacks 
sufficient documentation evidencing what exactly the Beneficiary would do for the period of time 
requested or where exactly and for whom the Beneficiary would be providing services. Given this 
specific lack of evidence, the Petitioner has not established who has or will have actual control over 
the Beneficiary's work or duties, or the condition and scope of the BenefiCiary's services. In other 
words, the Petitioner has not established whether it has made a bona fide offer ofemployment to the 
Beneficiary based on the evidence of record or that the Petitioner will have and maintain an 
employer-employee relationship with the Beneficiary for the duration of the requested employment 
period.4 See 8 C.P.R. § 214.2(h)(4)(ii) (defining the term "United States employer" and requiring 
the Petitioner to engage the Beneficiary to work such that it will have and maintain an employer­
employee relationship with respect to the sponsored H-lB nonimmigrant worker). The Petitioner 
has not established that it meets the definition of an United States employer pursuant to 8 C.P.R. 
§ 214.2(h)(4)(ii). The Director's decision is affirmed, and the appeal is dismissed for this reason. 
III. SPECIALTY OCCUPATION 
Beyond the Director's decision, we also find the evidence of record insufficient to establish that the 
proffered position qualifies as a specialty occupation. 
4 USCIS records show that the Petitioner subsequently filed another petition for the Beneficiary to work for the same 
end-client and then withdrew this petition on or about August 17, 2015. 
7 
Matter of T-C-S- Ltd 
A. 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 ~nd practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The regulation at 8 C.F.R. § 214.2(h)(4)(ii) states, in pertinent part, the following: 
Specialty occupation means an occupation which [ (1)] requires theoretical and 
practical application of a body of highly specialized knowledge in fields of human 
endeavor including, but not limited to, architecture, engineering, mathematics, 
physical sciences, social sciences, medicine and health, education, business 
specialties, accounting, law, theology, and the arts, and which [(2)] requires the 
attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as 
a minimum fo~ entry into the occupation in the United States. 
Pursuant to 8 C.F.R. § 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, a proposed position must 
meet one of the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its 
particular position is so complex or unique that it can be performed only by an 
individual with a degree; 
( 3) The employer normally requires a degree or its equivalent for the position; or 
( 4) The nature of the specific duties [is] so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
As a threshold issue, it is noted that 8 C.F.R. § 214.2(h)(4)(iii)(A) must logically be read together 
with section 214(i)(l) of the Act and 8 C.F.R. § 214.2(h)(4)(ii). In other words, this regulatory 
language must be construed in harmony with the thrust of the related provisions and with the statute 
as a whole. SeeK Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that construction 
oflanguage which takes into account the design of the statute as a whole is preferred); see also COlT 
Independence Joint Venture v. Fed. Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter ofW-F-, 
8 
Matter of T-C-S~ Ltd 
21 I&N Dec. 503 (BIA 1996). As such, the criteria stated in 8 C.F.R. § 214.2(h)(4)(iii)(A) should 
logically be read as being necessary but not necessarily sufficient to meet the statutory and 
regulatory definition of specialty occupation. To otherwise interpret this section as stating the 
necessary and sufficient conditions for meeting the definition of specialty occupation would result in 
particular positions meeting a condition under 8 C.F.R. § 214.2(h)(4)(iii)(A) but not the statutory or 
regulatory definition. See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000). To avoidthis 
result, 8 C.F.R. § 214.2(h)(4)(iii)(A) must therefore be read as providing supplemental criteria that 
must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of 
specialty occupation. 
As such and consonant with section 214(i)(1) of the Act and the regulation at 8 C.F.R. 
§ 214.2(h)(4)(ii), U.S. Citizenship and Immigration Services (USCIS) consistently interprets the 
term "degree" in the criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or 
higher degree, but one in a specific specialty that is directly related to the proffered position. See 
Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007) (describing "a degree requirement in 
a specific specialty" as "one that relates directly to the duties and responsibilities of a particular 
position"). Applying this standard, USCIS regularly approves H-IB petitions for qualified 
individuals who are to be employed as engineers, computer scientists, certified public accountants, 
college professors, and other such occupations. These professions, for which petitioners have 
regularly been able to establish a minimum entry requirement in the United States of a baccalaureate 
or higher degree in a specific specialty, or its equivalent, directly related to the duties and 
responsibilities of the particular position, fairly represent the types of specialty occupations that 
Congress contemplated when it created the H -1 B visa category. 
To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply 
rely oh a position's title. The specific duties of the proffered position, combined with the nature of 
the petitioning entity's business operations, are factors to be considered. USCIS must examine the 
ultimate employment of the individual, and determine whether the position qualifies as a specialty 
occupation. See generally Defensor v. Meissner, 201 F. 3d 384. The critical element is not the title 
of the position or an employer's self-imposed standards, but whether the position actually requires 
the theoretical and practical application of a body of highly specialized knowledge, and the 
attainment of a baccalaureate or higher degree in the specific specialty as the minimum for entry into 
the occupation, as required by the Act. 
We note that, as recognized by the court in Defensor, 201 F.3d at 387-88, where the work is to be 
performed for entities other than the petitioner, evidence of the client companies' job requirements is 
critical. See Defensor v. Meissner, 201 F.3d at 387-88. The court held that the former Immigration 
and Naturalization Service had reasonably interpreted the statute and regulations as requiring the 
petitioner to produce evidence that a proffered position qualifies as a specialty occupation on the 
basis of the requirements imposed by the entities using the beneficiary's services. ld. Such evidence 
must be sufficiently detailed to demonstrate the type and educational level of highly specialized 
knowledge in a specific discipline that is necessary to perform that particular work. 
9 
Matter of T-C-S- Ltd 
B. Analysis 
As previously discussed above, the evidence of record is insufficient to establish that the Petitioner 
has secured work for the Beneficiary in the United States. As the Petitioner has not made the 
threshold showing that it will have work available for the Beneficiary, we cannot determine the 
substantive nature of the proffered position. 
We are therefore precluded from determining whether the proffered position qualifies as a specialty 
occupation, because it is the substantive nature of the work to be performed by the Beneficiary that 
determines whether the proffered position satisfies any criterion at 8 CTR. § 214.2(h)(4)(iii)(A). In 
other words, it is the substantive nature of the work that determines (1) the normal minimum 
educational requirement for entry into 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 for classification as a specialty occupation. 
We again acknowledge the end-client's letter contained in the evidence of record. However, this letter 
is insufficient to establish the substantive nature of the proffered position, as it describes the proffered 
position in brief and generalized terms. It simply describes the proffered duties as "responsibility for 
planning, developing, testing and documenting computer programs." No further details regarding the 
proffered duties were provided in this letter. 
Moreover, the Petitioner's descriptions of the proffered duties provided in the cover letter are 
insufficient, too, as they are also in generalized terms. For instance, the Petitioner listed proffered duties 
including "[ c ]onducting trial runs of programs and testing of software applications to be sure they 
will produce the desired information and that the instructions are correct," and "[w]riting, analyzing, 
reviewing and rewriting programs, using workflow charts and diagrams, and applying knowledge of 
computer capabilities, subject matter, and symbolic logic." The above job duties appear to have 
been copied verbatim from the Occupational Information, Network (O*NET) Details Report for the 
occupational category "Computer Programmers" corresponding to SOC code 15-1131. See O*NET 
Online Details Report for "Computer Programmers," http://www.onetonline.org/link/details/15-
1131.00 (last visited Apr. 13, 2016). This type of description may be appropriate when defining the 
range of duties that may be performed within an occupational category, but it does not adequately 
convey the substantive work that the Beneficiary will perform and, thus, generally cannot be relied 
upon by the Petitioner when discussing the duties attached to specific employment. 5 
5 On appeal, the Petitioner provides a new, more detailed description of the duties the Beneficiary will purportedly 
perform. However, because the initial job descriptions provided by the end-client and the Petitioner were so vague, we 
10 
Matter ofT-C-S- Ltd. 
For the above reasons, there is insufficient evidence to establish that the proffered position qualifies 
for classification as a specialty occupation. The petition is denied for this additional reason .. 
IV. CONCLUSION 
The evidence of record does not establish that: (1) the Petitioner meets the definition of a United 
States employer as that term is defined at 8 C.F.R. § 214.2(h)(4)(ii); and (2) the proffered position 
qualifies as a specialty occupation. 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) (citing Matter ofBrantigan, 11 I&N Dec. 493, 
495 (BIA 1966)). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-C-S- Ltd., ID# 16223 (AAO Apr. 14, 2016) 
cannot determine whether the new description is consistent with the initial job descriptions. We thus will not consider 
the newly provided job descriptions further. On appeal, the Petitioner cannot offer a new position to the Beneficiary, or 
materially change a position's title, its level of authority within the organizational hierarchy, the associated job 
responsibilities, or the requirements of the position. 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). The 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 I&N Dec. 169, 176 (Assoc. 
Comm'r 1998). · 
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